Promoter wins Depeche Mode ticket ruling

District Court of Munich rules in favor of Marek Lieberberg

BERLIN -- Concert promoter Marek Lieberberg, based in Frankfurt, has fought back against the secondary ticket market after concerns about inflated prices for the Depeche Mode tour.

The District Court of Munich prohibited dealing in indirectly purchased concert tickets for the June 2-13 German leg of the tour, following legal action by the promoter.

In preliminary injunction proceedings, at the request of Marek Lieberberg Konzertagentur (MLK), the District Court of Munich prohibited the Internet ticket portal Ventic, which has a German service operated by Smartfox Media based in Roermond, Netherlands, from trading in tickets that Smartfox obtains direct from the MLK distribution system or through third parties. In these proceedings, MLK was supported by the two associations of the concert industry, idkv and VDKD.

Concert promoter Marek Lieberberg in Frankfurt said: "This decision is the first small step toward the long overdue regulation of ticket sales and the restriction of black market trading. Our aim must be to prevent professional ticket auctions and unacceptable commissions that often come to a multiple of the actual price of admission. At stake here is not so much giving the artists a further share, but the protection of ticket buyers against dubious sources and excessive premiums."

VDKD in-house counsel Johannes Kreile explained in Munich: "Many commercial ticket exchanges trade at the expense of the fans and artists by offering tickets at much too high prices, thus creating an artificial shortage. Neither the artists nor the concert promoters, who bear the entrepreneurial risk, benefit from this additional income and these overpriced tickets mean that the fans may not be able to go to further concerts."

MLK is the exclusive promoter of the German concerts on the Depeche Mode 2009 "Tour of the Universe." For all ticket sales through the ticket agencies of the only authorized ticket seller, CTS Eventim, the MLK standard terms and conditions of business expressly excluded the commercial resale of concert tickets for this tour.

In spite of this, a few days before the official advanced sale Smartfox had already offered large blocks of tickets at inflated prices for the "Tour of the Universe" concerts on the Internet. MLK took measures against this in the form of a preliminary injunction for tickets bought indirectly, which has now been confirmed by the Munich District Court.

"The courts deemed it proven that Smartfox had purchased or arranged for the purchase of tickets for the Depeche Mode tour from official ticket agencies whilst concealing its intention to resell them itself or through third parties," Kreile said. "In doing so Smartfox had deliberately obstructed the MLK sales concept in contravention of competition law."

In September 2008, the Federal Court of Justice in Karlsruhe had made it clear that ticket dealers who purchase tickets from authorized ticket agencies whilst concealing their true intention to resell them commercially -- although the promoter had excluded the commercial resale in its standard terms and conditions of business -- had committed "fraudulent purchase."

Against the backdrop of this decision, the Munich District Court has now also made it clear in a May 6 ruling that in its view the question of unfair "fraudulent purchase" depended on whether the ticket had been purchased by the first buyer with the intention of resale despite being aware of this being prohibited in the standard terms and conditions of business.

"The sale of tickets purchased in this way was anti-competitive, irrespective of whether the third party subsequently sold them or if they were sold via a ticket portal," says Dr. Kreile. Smartfox Media has the right to appeal against this decision. There was no reaction to the ruling from Smartfox Media in the Netherlands.
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