In the case in question, a drugstore chain had offered to redeem discount vouchers from competitors. The Wettbewerbszentrale objected to these advertising measures and filed a lawsuit. The company was thereby taking advantage of its competitors’ advertising expenditure. The Ulm Regional Court already dismissed this action in its ruling of November 20, 2014 (case no.: 11 O 36/14 KfH). The Stuttgart Higher Regional Court has now also dismissed the appeal lodged against this in a ruling dated July 2, 2015 (case no.: 2 U 148/14).
No undue influence on consumers
The court was of the opinion that the mere offer to redeem discount vouchers from competitors was not unfair within the meaning of Sections 3, 4 No. 10 UWG. This was the case neither if individual competitor companies were mentioned by name nor if a distinction was made by specifying the sector.
A consumer who holds a voucher in his or her hands is not yet considered to be a customer of the company that issued the voucher. According to the Senate, the mere announcement of redeeming third-party vouchers should not be regarded as inappropriate influence on the consumer. The drugstore chain had merely opened up an additional way for the consumer to obtain the price reduction promised by the voucher for another drugstore. The consumer’s freedom of choice was not affected by this.
Call to redeem competitor’s discount voucher no sabotage of competition
The judges also ruled that the redemption of discount vouchers from competitors did not constitute unfair advertising sabotage. The drugstore chain was not preventing competition between itself and its competitors through its actions. On the contrary, it actually intensified competition. The access of competitors to customers is not impaired by the company. Nor does the advertising measure render their voucher advertising pointless. By redeeming the discount vouchers, no targeted obstruction of competitors by the advertising could be established.
There was also no unfair misleading of the consumer within the meaning of Section 5 UWG.
The Senate has allowed an appeal to the Federal Court of Justice. As there has not yet been a supreme court decision on this issue, it remains to be seen whether and how the BGH will decide.