In its judgment of 16.03.2016 (Ref.: 10 O 81/15), the court clarified that an imprint written on edge is anti-competitive due to illegibility.
Vertically printed imprint on brochure
In the case to be decided by the Dortmund Regional Court, an association attempting to combat unfair competition and the defendant, which operates over 500 hearing aid stores in Germany, were in dispute. The plaintiff criticized the presentation of the defendant’s imprint on one of its brochures.
The defendant distributed brochures in which it advertised hearing aid models with prices. The imprint was printed at the end of the brochure. This was in 7 pt upright font on the left-hand edge of the last page. The content was: “H Hörakustik AG & Co KG, P-Straße ##, ##### E”.
Court: Imprint is not clear enough
The plaintiff felt that this imprint was too illegible due to its presentation. The court agreed with the plaintiff’s argumentation. As the brochure was an invitation to purchase, a correct legal notice was a mandatory requirement. It was equivalent to a missing imprint if it was not clear and easy enough to find.
Imprint written on edge is anti-competitive
According to the court and the plaintiff, the small white font on a light background made it barely legible. In addition, the selected upright shape was also the reason for the difficult perceptibility. Due to this unexpected position and design, the viewer – in the opinion of the court – finds no reason to “turn the brochure at all”. In addition, it is reasonable to assume that the reader will cover the “Imprint” with his thumb, as it is located on the left-hand side of the brochure.
The decisive factor is therefore that a consumer with normal eyesight can read the legal notice from a reasonable distance without aids and without difficulty. This is not guaranteed in the present case.
Injunctive relief and administrative fine for infringement
Consequently, the defendant was ordered to refrain from “advertising and/or having hearing aids advertised in the course of trade for the purposes of competition with reference to their features and price without stating the company’s identity and address“. If she does not comply, she faces a fine of up to €250,000.