Following a legal dispute between a consumer protection association and a department store operator, the Higher Regional Court ruled that sellers must state in their advertisements if certain goods are excluded from a discount campaign.
Footnotes restrict discount campaign
The consumer protection association had filed a lawsuit against the defendant because of an advertisement in the newspaper. It stated the following: “19% VAT DISCOUNTED ON A., B. AND C. + 5% EXTRA DISCOUNT”. In itself, there is nothing legally wrong with this statement. However, two footnotes pointed out that the offers in the brochure and those on another listed website were not covered by the discount campaign.
Interim injunction due to anti-competitive behavior
Following an unsuccessful out-of-court warning, the consumer protection association applied for an interim injunction ordering the department store operator to cease and desist from the aforementioned advertising. It based its application on the fact that the defendant was acting in an anti-competitive manner by not explicitly listing the products excluded from the discount campaign.
The regional court issued the injunction. The defendant lodged an objection and applied for the injunction to be lifted. It justified its position by arguing that it was complying with its duty to provide information. After all, it had referred to its homepage and thus complied with the transparency requirement. The Regional Court confirmed the interim injunction on the grounds that the advertising constituted a breach of Sections 4 and 5 UWG.
Appeal by the defendant
The defendant appealed against the judgment. It was sufficient to indicate certain features of the items on offer and to refer to the homepage for other information. It argued that the information owed had been omitted due to a lack of space. It was disproportionate to nevertheless regard this as mandatory.
OLG Bamberg: Appeal unfounded
The Bamberg Higher Regional Court, as the next higher instance, agreed with the Regional Court in its decision and dismissed the defendant’s appeal (judgment of 18.02.2015, Ref.: 3 U 210/14 ). A claim for injunctive relief arose from Sections 2, 3, 4 UKlaG in conjunction with Sections 3, 4, 8 UWG. Accordingly, the advertising violates the transparency requirement set out in Section 4 UWG. The defendant should have clearly and unambiguously stated the conditions of its discount campaign.
Consumer protection
The primary purpose of the transparency requirement is consumer protection. For this, it is relevant whether and which items are included in the discount campaign. Promotions such as this one have an attractive effect on customers, meaning that they must be given special protection.
Decision supported by BGH
The argument of a lack of space is refuted by the OLG. After all, more space could be created by spending more money. The BGH supports this argument in a similar case. According to this, asterisk references are only permissible if they are part of the customer’s eye-catcher. Only then does this type of advertising not violate the transparency requirement (BGH, decision of April 19, 2012, ref.: I ZR 173/11).
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