Federal Court of Justice, 14 April 2011, Ref. ZR I 133/09
The advertising of products or services is subject to strict conditions in Germany.
According to Section 5 (1) No. 1 of the German Act against Unfair Competition (UWG), a commercial act is misleading if it contains untrue statements or other misleading statements about essential characteristics of the goods or services.
The law lists, for example, the availability, type, design, benefits, risks, composition or accessories of the products or services as such characteristics.
Accordingly, if the competitor makes false statements about his product in his advertising or omits necessary information, other competitors have a claim for injunctive relief pursuant to § 8 para. 1, §§ 3, 5 para. 1 sentence 2 no. 1 UWG (new version).
In the above-mentioned decision, the BGH now had to decide whether a retailer of ink and toner cartridges was allowed to advertise printer cartridges on its website with the guarantee promise "3-year guarantee" without having to explain the conditions for obtaining this guarantee promise in more detail in the advertising.
FactsThe plaintiff, a competitor of the defendant, based its action on the fact that the defendant's advertising violated competition law because it was not clear to the visitor to the website or the buyer from the advertising what conditions were attached to the guarantee promise.
After the action was dismissed by the Regional Court, the Higher Regional Court upheld the plaintiff's legal opinion on appeal.
Federal Court of JusticeThe BGH in turn overturned the judgement of the OLG and stated in this respect: Although the guarantee declaration regulated in § 477 BGB must refer to all the rights of the consumer and inform him in detail about the conditions of the guarantee case, the defendant's advertising was not to be understood as a guarantee declaration.
A guarantee declaration is deemed to exist if the legal statement made by the retailer constitutes a declaration of intent aimed at concluding a purchase contract or an independent guarantee contract.
However, if it is merely an "Invitatio ad offerendum", as in the case of an advertising offer, there is no legally binding promise of a guarantee.
The confusion in the context of this legal interpretation results from the ambivalent interpretation of the term "guarantee" in European Directive 1994/44 EC, in which the European legislator has stipulated that the promised "guarantee" must contain the necessary information.
This requirement of certainty only applies to a guarantee declaration but not to the statement of a guarantee in advertising.
Source: Federal Court of Justice
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