Misleading advertising under the German Unfair Competition Act (UWG)

Misleading commercial practice

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"Misleading advertising" became "misleading commercial practice"

The central concept of German and European competition law is the "misleading commercial practice". Misleading commercial practices are unfair and prohibited under Section 5 of the German Unfair Competition Act (UWG). Since December 30, 2008, the "misleading commercial practice" has replaced the then narrower term of "misleading advertising". A prohibition of deception applies: information about products and companies must be true, correct and complete.

 

Fact or value judgment?

Statements can be factual assertions (provable) or value judgments. Pure value judgments without a factual core are not "advertising" within the meaning of the UWG because of the fundamental right to freedom of opinion. However, such statements rarely occur in advertising (cf. BVerfG v. 12.7.2007, 1 BvR 2041/02 Pharmakartell). Pure value judgments are general phrases without informative content, meaningless recommendations, mere appeals to buy, "advertising-like" exaggerations and subjective opinions.

Example (German Federal Court of Justice v. 7.11.1996, I ZR 183/94 - Aussehen mit Brille)

For example, the following is considered to be a meaningless advertisement

"Better to look better than pay a lot".

A claim is a statement of fact if it contains concrete, verifiable characteristics about the product or service. The decisive factor for differentiating between a factual claim and a value judgement is how the public understands it (cf. BGH v. 17.11.1992, VI ZR 344/91). The audience in turn is the "addressed public".

The "addressed public" in theory and practice

The "addressed public" decides on the misleading nature under competition law

Whether an advertisement is perceived as "misleading" depends in itself on how those persons to whom it is addressed understand it. These are the so-called fictitious "addressed public" or the "targeted public". This may be a consumer, for example, or a specialist retailer.

"Fugitive" consumer became "averagely informed" consumer

Until the 1990s, the formula of the "superficial, fleeting consumer" applied. Since 1999, consumers have been granted a higher level of attention by the BGH when assessing whether an advertisement is misleading. Since then, he has been "averagely informed and reasonably attentive". The notional assessor of an advertisement has since been (Federal Court of Justice v. March 8, 2012, I ZR 202/10 - Marktführer Sport; cf. Federal Court of Justice , GRUR 2000, 619 [621] - Orient-Teppichmuster; GRUR 2004, 244 - Marktführerschaft; Federal Court of Justice, GRUR 2012, 184 marginal no. 19 - Branchenbuch Berg):

"the average informed and reasonable consumer who pays attention to an advertisement in a manner appropriate to the situation."

Targeted public is "substantial portion of the solicited public"

An advertisement is only misleading if it is likely to create misconceptions in a significant part of the targeted public as to the characteristics or capabilities of the entrepreneur and to influence the market decision to be made in a competitively relevant manner (cf. BGH, GRUR 2004, 162 [163] - Mindestverzinsung; GRUR 2007, 1079 marginal no. 38 - Bundesdruckerei; GRUR 2009, 888 marginal no. 18 - Thermoroll; Bornkamm, in: Köhler/Bornkamm, § 5 marginal nos. 2.20 f. and 2.169).

What constitutes a "substantial part of the targeted public" is not to be determined on the basis of fixed percentages. It depends on the "circumstances of the individual case". However, a "not entirely insignificant part" of the targeted public is not sufficient (BGH v. March 8, 2012, I ZR 202/10 - Marktführer Sport).

In practice, the deciding judges often count themselves among these "addressed circles of the public". If they do not, they usually nevertheless consider themselves competent to decide because, from their point of view, their own understanding does not differ from that of the addressed public.

Examples:

  • BGH v. 10.8.00 - I ZR 126/98 - Stich den Buben - for well-known vineyard location
  • OLG Hamburg of 20.2.2000 - 5 U 187/01 - for textile print "Zicke
  • OLG Karlsruhe NJWE-WettbR 1996, 52 for advertising to specialist circles for low molecular weight heparin for use in thrombosis prophylaxis
  • OLG Hamburg v. 21.12.2006 - 3 U 77/06 - for information about drugs for the therapy of osteoporosis in postmenopausal women with increased risk of fracture
  • BGH v. 18.01.2012 - I ZR 104/10 -  Neurologisches/Vaskuläres Zentrum - for advertising to physicians and potential patients

No expert opinion on the view of the public

An expert testimony as to whether the public is being misled is thus ruled out in the vast majority of cases in a lawsuit. In practice, the "relevant public" is therefore usually the judges of a higher regional court. This must be taken into account in practice when determining whether a statement can be considered misleading or not.

MISLEADING ADVERTISING ABOUT THE PRODUCT

It is not allowed to deceive about essential characteristics of products (goods or services). This includes their availability, type, purpose, design, use, quantity, results, advantages, risks, composition, accessories, origin, manufacturing process or time of manufacture, delivery, customer service and test results (Section 5 I No. 1 UWG).

Example ( Regional Court of Hamburg v. 10.2.2011, 315 O 356/10):

It is misleading to use the indication

"ÖKO-Tex Standard 100"

when no such certificate has actually been issued for the advertised product.

The information about which deception is not permitted under Section 5 (1) No. 1 German Unfair Competition Act - UWG - expressly includes the type and composition of the goods. For example, artificial silk may not be described as silk (BGH v. 11.5.1954, I ZR 178/52 - Cupresa-Seide). The Textile Labeling Ordinance contains special regulations on the mandatory information for textile products. Information that the customer should know may not be concealed and is essential information according to Section 5 a German Unfair Competition Act - UWG.

Misleading advertising with the organic seal or the term "biological"

Advertising for "organic" food

The term "organic" has different meanings depending on the product for which it is used. For agricultural products (food, feed, seed), the EC Organic Regulation (Regulation (EC) No. 834/2007 on organic production and labelling of organic products) applies. For plant-based foodstuffs (e.g. spices, cf. Art. 2 lit. j EC Organic Regulation; BGH, Urt. v. 29.3.2018 - I ZR 243/14 - Bio-Gewürze II), "Bio" indicates that the product has been obtained in accordance with the provisions of the EC Organic Regulation. In these cases, the organic control number must also already be indicated in the advertising of such products (BGH, judgment of March 24, 2016 - I ZR 243/14 - Bio-Gewürze) (OLG Celle, judgment of September 11, 2018 - 13 W 40/18 - Mandatory Information on Food). Advertising with terms such as "Bio-" or " Eco-" for agricultural products that do not comply with the provisions of this Regulation is prohibited under Article 23 (2) of the EC Regulation on Organic Agriculture.

This does not apply without further ado to foodstuffs outside the scope of the EC Regulation on Organic Agriculture (i.e. agricultural products according to Art. 1 (2) EC Regulation on Organic Agriculture). All the more so if the product, e.g. mineral water, has nothing to do with organic farming (BGH, judgment dated 13. 9. 2012 - I ZR 230/11 - Biomineralwasser). Rather, the general prohibition of misleading statements applies here. In this case, the term "organic" is associated with the expectation that the product so designated is largely free of residues and pollutants and contains only unavoidable minimal amounts well below the legally permissible limits (BGH, judgment of September 13, 2012 - I ZR 230/11 - Biomineralwasser). A mineral water advertised as "premium mineral water in organic quality" (Volvic) is expected to be not only significantly purer than conventional mineral water, but also untreated. This is not the case if the extracted raw water has to be passed through manganese sand in order to reduce the high arsenic content (OLG Frankfurt a. M. v. 29.04.2021 - 6 U 200/19 - Premiummineralwasser in Bio-Qualität).

Advertising for other "organic" products (not food)

The general prohibition of misleading advertising also applies to other products. The terms "organic" and "ecological" can express both a health reference and an environmental reference. As far as the health aspect is concerned, a product that is advertised as "organic" must be more than merely harmless. Rather, it must have a positive effect. As far as the environmental aspect is concerned, the consumer associates "bio/ecological" with a purely natural quality of the product in question that does not contain any chemical substances (LG Karlsruhe, judgment of 25.03.2021 - 14 O 61/20 - skin-friendly, cf. KG Berlin, KG Berlin v. 22.09.1992 - 5 U 3485/90 "BIO GOLD"). The term "Bio" also suggests that the product was predominantly produced from natural raw materials. The term "Bio" is associated with the expectation that the product so designated is largely free of residues and pollutants and contains only unavoidable minute quantities well below the legally permissible limits (BGH v. 13.09.2012 - I ZR 230/11 - Biomineralwasser).

Example (Higher Regional Court Hamm, v. 27.3.2012 - I-4 U 193/11 - Bio-Oil):
The advertising of cosmetics as "Bio-Oil" is misleading if it contains more than 50% chemical-industrial ingredients.

Duty to provide information also for "organic" articles

Case law also requires consumers to be informed about the meaning and content of this term when advertising "organic" articles (OLG Hamm v. 19.08.2021 - 4 U 57/21 - CO2-reduced; Landgericht Stuttgart v. 10.01.2022 - 36 O 92/21 KfH - Misleading advertising with the carbon dioxide compensation of an investment fund).

Misleading advertising with "recycled", "recycled" or "pre-consumer recycling"

Resource-saving manufacturing processes are appealing to more and more consumers. So it makes sense to spice up advertising with terms like "recycled" or "recycling". However, case law imposes strict requirements on advertising using the term "recycling." The popular term "pre-consumer recycling" is particularly dangerous. This is because it is not clear to the consumer that "pre-consumer material" is previously unprocessed residual material that arises during production.

"Recycling" according to the law.

"Recycling" is any recovery process by which waste is reprocessed into products, materials or substances. This is what Section 3 (25) of the Closed Substance Cycle Waste Management Act (Kreislaufwirtschaftsgesetz - KrWG) says. "Waste", in turn, are substances or objects that one gets rid of because one wants to or has to, Section 3 para. 1 KrWG.

Recycling according to the law

Anyone who buys a recycled product expects that it has been completely recovered from the specified material (cf. BGH GRUR 1991, 546 - Aus Altpapier). If, for example, 1/3 new material is added in the recycling process, this contradicts the concept of "recycling" (OLG Celle v. 27.05.1993 - 13 U 32/93 - Recycling Reifen). The consumer does not know the technical details of the recycling process. He usually only knows that in a recycling process a starting material is technically reprocessed and a new starting product or material is created from it (cf. KG Berlin v. 21.05.2010 - 5 U 103/08 - 110% recycled; OLG Hamburg v. 14.06.1990 - "Recycling-Leder").

„Pre-Consumer-Recycling“

The term "pre-consumer recycling" does not exist in the law. However, if "recycling" presupposes that something is reprocessed that was previously thrown away (see above), the term "pre-consumer recycling" is a contradiction in terms: what is still used for production is not thrown away. The case law sees it similarly: paper, for example, in the production of which (fresh) manufacturing residues are also processed, may neither be described as "100% recycled", "premium recycled", "The whitest recycled office paper", "premium recycled office paper", nor as a "redefinition of recycled paper" (KG Berlin v. 21.05.2010 - 5 U 103/08 - 110% recycled). This is because consumers associate the term "100% recycled" with the idea that the material used to manufacture the product has already been in circulation, so that its reuse closes a cycle. In the case of a recycled product, it is therefore expected that a cycle of waste, removal, reprocessing and manufacture will be completed (cf. KG Berlin loc.cit. - 110% recycled).

Misleading by "pre-consumer recycled"

So, if in the offer of a T-shirt the material is stated as "recycled pre-consumer cotton", this is a misleading commercial practice. This is because this cotton has not gone through a cycle of disposal, reprocessing and recovery. It would not be misleading to offer a product made from material scraps as.

"made from material residues" or "made from leftover material".

 

 

Misleading advertising with "free of harmful substances

Products advertised as "free of harmful substances" must also be free of harmful substances. It is not sufficient if the products are merely below the legal limits (OLG Stuttgart v. 25.10.2018 - 2 U 34/18 - Werbung mit "schadstofffrei").

 

Advertising with "from own production", "strong brands" and "brand quality

Anyone who advertises products from "own production" does not always act unfairly if he actually buys in part of the goods.

Example (Bundesgerichtshof - I ZR 89/12 - Matratzen Factory Outlet):
A mattress retailer produced 70% of its goods itself. 30% was bought in. However, the manufacturers of the purchased goods were only allowed to sell them themselves if the mattress retailer had previously agreed. The BGH rejected a misleading statement. Because the purchased portion (30%) was manufactured by third parties in contract manufacturing and the third-party company was only allowed to resell the mattresses not supplied to them under a different name with the consent of the mattress retailer, the latter had only acted as an "extended workbench". The dealer was therefore permitted to advertise with "own production".

Advertising with "Strong Brands" or "Brand Quality

An advertisement with

"strong brands"

suggests, according to the BGH, an "increased awareness". Anyone who sells unknown branded goods may not advertise with "strong brands". Advertising with "strong brands" is misleading if the brands have not yet made a name for themselves (BGH I ZR 89/12 - Matratzen Factory Outlet). Advertising with

"brand quality"

for nameless (i.e., not marked with a brand) goods is permitted, however. "Brand quality" is not synonymous with "branded goods". This would only be understood to mean that the products were of the same quality as those of competing brand manufacturers (BGH I ZR 89/12 - Matratzen Factory Outlet).

    Misleading advertising with CE marking

    With the exception of medical devices, the "CE mark" is not issued or awarded by a neutral body. Rather, it is affixed to the products by the manufacturer himself. It is therefore the manufacturer's own declaration that its products meet the safety and health requirements of Annex I of Directive 98/37/EC. If these requirements are not actually met, advertising with the CE mark is misleading. It is also misleading to use the words

    "CE tested"

    because this suggests that the product has been tested by a neutral body (OLG Frankfurt/M. v. 21.06.2012 - 6 U 24/11 - CE-geprüft).

    Misleading advertising about stock of goods and delivery times

    Misleading advertising with loss leader offers when the stock of goods is only low

    It is not uncommon for goods to sell out quickly, especially when bargains serve only as loss leaders. An entrepreneur who offers his goods to consumers and expects that he will not be able to deliver for a reasonable period of time must already point this out in the advertising. Otherwise the advertising is unfair. If the stock lasts less than two days, the advertiser must prove that, from his point of view, the stock was reasonably available (Annex No. 5 p. 2 to Section 3 (3) UWG, "Black List". Inadmissible here is not the inadequate stocking, but the insufficient information about this (BGH v. 10.2.2011 - I ZR 183/09 - Irish butter).

    Example (BGH v. 17.9.2015 - I ZR 92/14 - smartphone advertising).
    A large discounter offered a smartphone for € 99.00 in its online store. An asterisk text contained the notice:

    "This item may already be sold out during the first day of the offer due to limited stock."

    In fact, the smartphone was already sold out on the morning of the first day of the offer. This was misleading despite the asterisk text. After all, a consumer does not expect such a quick sell-out.

    In online retail, a consumer even expects that the goods can be shipped immediately. It is unfair here to offer goods that can only be delivered in three weeks.

    Pretence of a shortage of goods and "bait and switch"

    Anyone who advertises to consumers a shortage of goods that does not actually exist is also acting unfairly, see Annex No. 7 p. 2 to Section 3 (3) UWG ("black list"). Similarly, anyone who does not want to sell the product offered but instead wants to sell another ("bait and switch") is acting unfairly, see Annex No. 6 p. 2 to Section 3 (3) UWG ("Black List") .

    Misleading advertising with delivery periods

    Delivery deadlines must be stated correctly. However, a Google Ad ad is permitted:

    "Original printer cartridges within 24 hours."

    Even if delivery requires an order to be placed by 4:45 p.m. at the latest and delivery is not possible on Sundays, the consumer knows that an unrestricted 24-hour delivery service does not usually exist (cf. BGH v. 12.5.2011 - I ZR 119/10 - Within 24 hours

    Misleading advertising with obvious facts

    Self-evident features as special features

    Even true statements can be misleading if a misleading impression is created. An example of this is the so-called "advertising with self-evident facts". Here, a product characteristic that is in itself self-evident or even required by law is presented as not self-evident.

    Examples
    - The advertising statement

    "With us, you will receive an invoice with 19% VAT shown".

    is misleading, as it suggests a particular advantage (OLG Braunschweig v. 2.9.2010 - 2 U 36/10).

    - It is also misleading to advertise a more expensive "insured shipping" in addition to "uninsured shipping". This suggests to the consumer that insured shipping would bring him advantages. In fact, however, the merchant bears the shipping risk anyway if the goods are lost during shipping to the consumer (see Sec. 475 II BGB).

    - However, one may only offer "uninsured shipping" if one does not offer a more expensive insured shipping at the same time (cf. LG Hamburg v. 18.1.2007 - 315 O 457/06 - Unversicherter Versand).

    Exception: obviousness is recognizable

    However, misleading is excluded if it is recognizable that the emphasized property is something self-evident.  

    Examples
    - An advertisement with "original goods" is permissible in the fashion and textile sector, because counterfeits are common here (see OLG Hamm v. 20.12.2010 - I-4 W 121/10, 4 W 121/10).

    - Equally permissible is the statement "We only sell 100% original goods directly from the manufacturer." (OLG Düsseldorf v. 5.12.2011 - I-20 U 128/10).

    Other misleading true advertising

    Even otherwise true statements can be misleading if a misleading impression is created when they can be misunderstood in the context of the statement.

    "Innovation" and "1st sun protection".

    The Hanseatic Higher Regional Court of Hamburg had to rule on an advertisement for a sunscreen. The objection in preliminary injunction proceedings was to an advertisement by the defendant:

        "INNOVATION
        1. SUNSCREEN
        from the P...F... research with
        HEV BLUE LIGHT FILTER"

    "HEV Blue Light" or "High Energy Visible Blue Light" is a part of normal daylight that - unlike UV light - is visible. It is the most energetic part of visible sunlight in the spectrum from 400 to 450 nm wavelength, but lower in energy than the shorter wavelength UV light next to it in the light spectrum. The energy of the radiation decreases with increasing wavelength, although the penetration depth of the rays into the skin increases; wavelength and penetration depth are inversely proportional to the energy content of the rays and a hazard to the skin. In the scientific community and between the parties, it was disputed whether HEV Blue Light is harmful to the skin and whether protection against it is useful at all. In any case, some products, including those of the defendant, had already contained a mineral filter against HEV Blue Light for some time. New to the product was an organic (chemical) HEV Blue Light filter.

    It is recognized that, under certain circumstances, even factual statements that are accurate in terms of content, i.e. true, may give rise to a risk of misleading statements. This is the case if a considerable part of the target audience associates an objectively correct statement with an incorrect idea. The Higher Regional Court of Hamburg found that there was a risk of misleading consumers. As the first sunscreen with a purely organic HEV Blue Light Filter, it was indeed an innovation. However, there was no mention of this in the advertising. The consumer did not learn that it was an organic filter. He therefore had to understand the advertising in such a way that it was either the first sun cream with HEV Blue Light Filter at all and that P...F...Forschung had invented it. Even if the consumer assumed that it was not the first sun cream with HEV Blue Light Filter at all, but only the first such sun cream of the respondent, the advertisement was misleading. This was because the respondent had already offered sun creams with HEV Blue Light Filter before. The advertising was therefore misleading (OLG Hamburg, judgment of 7.9.2023 - 15 U 113/22 - HEV Blue Light).

    Misleading advertising with leading position of a product

    Peak position advertising or unique selling position advertising is popular. People like to buy from the biggest and even better from the one with the lowest prices. Here are some principles to consider.

    Top position verifiably untrue?

    Advertising with the top position of a product must not be misleading. Statements that are verifiably false are prohibited. The first question is whether the advertising suggests a top position at all. Subjective opinions are permitted, e.g. "Why we believe our product is the best". Superlative advertising that is so exaggerated that it is no longer taken seriously is also permitted.

    Example (KG Berlin v. 3.8.2010 - 5 W 175/10 - Best power course ever)
    Permitted is the statement:

    "The best power course ever."

    Generalizing statements

    Generalized statements are also permitted if they lack a reference to competitors and the exaggeration in advertising is immediately recognizable.

    Example (BGH v. 3.5.2001 - I ZR 318/98 - The best every morning)
    The advertising for breakfast cereals with the slogan

    "Kellog's - The best every morning"

    is also not misleading. This is because there is no reference to competing products here. Furthermore, it is clear that this is a subjective, suggestive statement, because only everyone can determine for themselves what is best for them every morning.

    Legal Prerequisite of top position advertising: clear lead over the competition.

    A product that is advertised with a top position must have a clear and steady lead over the competition.

    Examples
    - Advertising a blood glucose meter with the words.

     "the most precise blood glucose strip"

    is misleading if in fact only individual measuring processes show a more precise measurement compared to other market products, but the device is not the most precise in every respect (OLG Frankfurt/M. v. 10.8.2017 - 6 U 63/17 - Pharma-Vertriebsbereiche).

    - A series of luggage may only be labeled with

    "World's Lightest"

    if all advertised luggage is actually lighter than comparable products of other manufacturers (OLG Frankfurt/M. v.14.2.2019 - 6 U 3/18 - World's Lightest).

    - The advertising of a drug with.

    "The formula is: highest drug quality (= best starting materials) + highest extract quality (= best manufacturing process) = best product: S® extract!"

    is misleading if the product does not outperform all similar drugs in quality and efficacy (OLG Nürnberg v. 14.9.2018 - 3 U 1138/18 - Schnupfenmittel).

    Advertising with "original" (product)

    Advertising with an "original" product can also be misleading. This suggests that competing products are imitations. This is also misleading if this is not actually the case.

    Example (OLG Celle v. 4.9.2018 - 13 U 77/18 - das Original).

    A radio commercial advertising Vitalkost with the statement.

    "Because only the original has a clinically tested recipe for success. A. - simply because it works",

    is misleading if it is in fact not the first product of its kind.

    Advertising with "unrivaled"

    The word "unrivaled" also suggests a unique position.

    Examples
    - The advertisement

    "CONCURRENCY-FREE: TELEPHONE CONNECTION FROM K. FOR ONLY EUR 9.90".

    is a misleading unique position claim if the price is undercut by competitors (cf. BGH v. 10.12.2009 - I ZR 149/07 Sondernewsletter).

    - Also misleading is advertising for a lawyer portal with the statement.

    "Unrivaled marketing concept",

    if comparable portals already exist (see OLG Hamm v. 3.9.2013 - I-4 U 82/13 - Konkurrenzloses Anwaltssuchportal).

    Advertising with asterisk clues

    Eye catching advertising with asterisk clues

    An advertised product often contains weaknesses. These are often hidden in asterisks so as not to weaken the advertising effect. Jurisprudence calls advertising with asterisks "eye-catching advertising. Eye-catching" refers to the central advertising message.

     

    Sternchen können Irreführung ausschließen

    The central advertising statement need not contain all the restrictions of the offer. Whether asterisk texts can exclude misleading eye-catching is judged according to the following criteria:

     

    Sternchen muss beim aufklärungsbedürftigen Begriff stehen

    A clearly false advertising statement ("brazen lie") cannot be corrected with an asterisk (BGH of 24.5.2000 - I ZR 222/97 - Falsche Herstellerpreisempfehlung). If there is a comprehensible interest in the advertising statement, it can be corrected by an asterisk. According to case law, an explanation in an asterisked notice must be "part of the eye-catcher" (BGH of 2.6.2005 - I ZR 252/02 - Aktivierungskosten II). This means that the asterisk must be placed where a term needs to be explained. Often this will be the price, if this does not include all price components. The asterisk must also not be explained by a "media break" only in another medium. Otherwise it is a misleading commercial act.

    Example (OLG Bamberg of 22.6.2016 - 3 U 18/16 - asterisk reference with media break):

    A furniture store advertised in a print ad:

    "19 % VAT. FREE ON FURNITURE, KITCHENS AND MATTRESSES + 5% EXTRA DISCOUNT."

    The statement was qualified by an asterisk, which explained at the end of the ad:

     "You can find more detailed conditions and selected suppliers on the Internet at ..."

    This media break was inadmissible. The restrictions on the offer should already have been placed in the print ad.

    Eye-catching advertising without asterisks by means of clarifying text

    Inaccurate information in the eye-catching advertisement can also be corrected in a clarifying text in the advertisement instead of in an asterisk text. Prerequisite: This clarifying text is short and clear and is not hidden in the advertisement. However, this only applies if it can be assumed that the consumer will also deal with the text. The more expensive and durable the advertised product, the more likely he is to do so.

    Example BGH v. 18.12.2014 - I ZR 129/13 - Bedroom complete:

    A furniture store offered a bedroom at

    "1499.- Bedroom complete".

    The product photo showed a wardrobe and a double bed with night consoles. An eye-catcher in the form of a box contained the text.

    "COMPLETE:
    - Hinge-door wardrobe
    - double bed
    - Night consoles"

    Supplementary text in small type read:

    "Bedroom
    High gloss white finish. Consists of: Revolving door wardrobe 6-door, W/H/D approx. 274 x 226 x 60 cm, double bed in lying surface approx. 180 x 200 cm and 2 night consoles. Without slatted frame, mattresses, ancillary furniture and decoration."

    That slatted frame and mattress were not included in the offer price was not misleading. Because in view of the high price, the consumer will look more closely at the entire text than in the case of an offer at a lower price, which is economically inconsequential for the consumer.

    However, such clarifications may not be contained in such a long and confusing text that it is assumed that the consumer would not read it (see BGH of 21.9.2017 - I ZR 53/16 - Festzins Plus). However, the prerequisite for such clarification is that the consumer recognizes the connection between the incorrect eye-catching information and the clarifying information "at a glance", so to speak, because both components are in spatial proximity and the clarifying information is not "hidden" in confusing text (OLG Düsseldorf of 17.07.2020 - I-15 U 76/19, 15 U 76/19 - Fluggastrechte-Inkasso).

    Misleading advertising with scientific studies

    If an advertising claim is substantiated by a scientific study, this study must meet certain requirements. The "circumstances of the individual case" determine which requirements must be met in order to provide evidence of sound scientific knowledge. Studies must comply with recognized rules of scientific research, both in the structure of the study and in the evaluation. Case law usually requires a "randomized, placebo-controlled, double-blind study with an adequate statistical analysis. This means that the study must include an untreated or sham-treated control group, leaving it to chance whether a subject belongs to the experimental or control group. Neither the investigator nor the subject must know which group he or she belongs to. The study must have been published and discussed among experts (cf. BGH of February 6, 2013 - I ZR 62/11, marginal no. 19 - Basisinsulin mit Gewichtsvorteil).

    Advertising with guarantees

    With a warranty, a product supplier either promises benefits that go beyond the statutory warranty rights, e.g. an extension of the statutory period in which warranty rights can be asserted. A guarantee can also be given that a product has certain properties, e.g. a certain durability. Anyone advertising with guarantees may not make misleading statements about this (Art. 7 (g), Art. 7 (1) and (4) (d) of Directive 2005/29/EC, Sec. 5 (1) No. 7, Sec. 5a (2), (3) No. 4 UWG; cf. also BT-Drucks. 14/6040, S. 247). It is true that according to § 479 of the German Civil Code (BGB) a guarantee declaration must contain all essential information necessary to be able to make use of the guarantee. However, this obligation to provide information only applies if a warranty declaration (Section 443 of the German Civil Code) is actually offered in a legally binding manner before or at the time of purchase. Offers in online stores and "buy it now" offers on Ebay are usually legally binding offers. Internet auctions, for example on Ebay, on the other hand, are typically invitations to make an offer ("invitatio ad offeren-dum"). These are not yet legally binding offers. The information pursuant to Section 479 of the German Civil Code (Bürgerliches Gesetzbuch - BGB) must therefore not yet be provided in such invitations to submit an offer.

    However, it is always a prerequisite that the manufacturer's warranty is a decisive feature of the offer in the advertising. If the offer mentions the manufacturer's commercial warranty only in passing, the advertising entrepreneur is not already obliged to provide the consumer with information about the warranty on the basis of this mere mention.

    Example:
    An online retailer offered a pocket knife from the Swiss manufacturer Victorinox for sale on Amazon. The offer did not contain any information about a warranty. Under the heading "Further technical information", a link was provided with the designation "Operating instructions". Clicking on this link took the user to a two-page product information sheet from the manufacturer. The second page contained, among other things, a statement about the "Victorinox Warranty":

    "The Victorinox warranty covers any material or manufacturing defect for an unlimited period of time (2 years for electronics). Damage resulting from normal wear and tear or improper use is not covered by the warranty."

    Here, the online retailer did not have to provide the statutory mandatory information under § 479 BGB about the warranty (see above). This is because the advertising with the warranty was only mentioned in passing and was not a decisive feature of the offer (ECJ v. 5.5.2022 - C-179/21 - absoluts/the-trading-company).

     

    Advertising with legal warranty rights

    The statutory warranty rights in the event of the purchase of a defective item (subsequent performance, withdrawal from the contract, reduction in price and compensation for damages) must be strictly separated from a "warranty". Advertising with statutory warranty rights in the purchase of a defective item (supplementary performance, withdrawal from the contract, reduction in price and compensation for damages) is unfair if these rights are presented as something special (Annex No. 10 p. 2 to Section 3 (3) German Unfair Competition Act - UWG ("black list").

    Misleading is therefore an advertisement of an online retailer for printer accessories with the advertisement

    "If you are not satisfied with a compatible product, you have a 14-day money-back guarantee".

    This is because this suggests that this right of return is a special feature, although such a right of withdrawal or return is available to every consumer who purchases online (BHG v. 19.3.2014 - I ZR 185/12 - Geld-Zurück-Garantie III). 

    However, if these rights are presented as self-evident, this is not unfair. It is therefore permissible to advertise statutory rights if it is made clear that these are statutory rights. The following advertisement is therefore permissible (BGH v. 19.03.2014 - I ZR 185/12 - Geld-Zurück-Garantie III, para. 15):

        "Of course, the statutory warranty period of 2 years also applies to all products".

    Advertising other consumer rights

    Misleading statements about other rights to which the consumer is entitled are also inadmissible (Section 5 II No. 7 UWG and No. 10 of the Annex to Section 3 III German Unfair Competition Act - UWG (Black List). These are, for example, performance, rescission or avoidance of a contract. However, it can also be a matter of pure information rights. This also includes missing or incorrect information about a right of withdrawal.

    Examples
    - The following advertising statement by a statutory health insurance fund is impermissible:

    "If you leave BKK M. now, you bind yourself to the new one for the next 18 months. You may have to pay more in the end if your new health insurer cannot manage with the money it has been allocated and therefore levies an additional contribution."

    Because here it is concealed that insured ones have actually after the law a special notice right, if the health insurance company raises an auxiliary contribution (BGH of 16.11.1995 - I ZR 25/94 - revocation instruction III).

    MISLEADING ADVERTISING ABOUT THE COMPANY

    It is not allowed to deceive about the person of the advertiser, for example about his identity, his assets, his abilities and licenses or about the way of his distribution (§ 5 para. 1 no. 3 German Unfair Competition Act - UWG).

     

    Misleading about the identity

    In addition, information about the identity of the entrepreneur or his assets or, for example, about the nature of his distribution may not be misleading.

    Examples
    - A legally independent "shop-in-shop" operator in a department store may not give the impression that it belongs to a department of the department store (BGH of 27.10.1988 - I ZR 47/87 - Shop in the Shop II).  

    - A company calling itself a "municipal utility" must be majority-owned by the municipality. If municipal shareholders only hold minority shares, this designation is misleading (BGH of 13.6.2012 - I ZR 228/10 - Stadtwerke Wolfsburg).

    Misleading advertising with top position of a company

    It is not uncommon for the claimed top position to refer not to a product, but to the advertiser itself. Such company-related statements are also unfair if they are incorrect facts. Anyone advertising the top position of their company should carefully consider how the audience might understand the advertising statement and what they expect from the advertising company.

    Examples:
    - A telecommunications company advertised with the statement:

     "T-Online is Europe's largest online service."

    It had 3.3 million customers in Germany. It was not represented in numerous countries in Europe. A competitor had only 2.7 million customers throughout Europe. But its customers spent more than seven times as long online as T-Online customers. For potential customers of an online service, however, it is not the number of customers that is decisive, but the possibility of using its services. This, in turn, is determined by availability and length of use. Since the competitor was leading in this case, the advertising was misleading (BGH v. 17.6.2004 - I ZR 284/01 - Largest online service).  

    - The advertising of a department store as

     "Market leader in the sports product range

    is misleading if a competitor has higher sales in the same product range (see BGH v. 8.3.2012 - I ZR 202/10 - Marktführer Sport).

    The following also applies to advertising for top positions: Expressions of opinion are permitted.

    Example (OLG Bremen of 27.8.2010 - 2 U 62/10 - My No. 1):
    The advertising of a telecommunications company with the picture of a woman looking smilingly at an advertisement text referring to the company, which reads.

     "My No. 1!",

    is not misleading. This is because it can be seen that it is a subjective value judgment ("My ... ").

    Misleading advertising about the company tradition

    "tradition", "longstanding" and " for many years"

    Tradition creates trust. It suggests experience. Companies change. The changing times sometimes stand in the way of tradition. It is not uncommon for people not to take company tradition very seriously. It does not matter if the owner, the legal form or the company name changes. But the one who advertises a company tradition must essentially run the same company. One must be able to speak of a company continuity if one refers to a company tradition. However, insolvency proceedings in the meantime need not be detrimental to a 100-year company tradition if the company was nevertheless continued essentially unchanged (OLG Frankfurt/M. v. 7.9.2015 - 6 U 69/15 - Irreführende Werbung mit langjähriger Firmentradition). A complete change of the product range, however, speaks against a company continuity. Because the experience is missing for the new products. Anyone advertising with "... since 1920" must be able to prove a company continuity since 1920.

    Examples
    - Misleading advertising with the statement

    "The basis of our company is a great tradition that goes back to the 19th century",

    if the only reference to the company at that time is that it permissibly used an identical sign (logo) (OLG München v. 7.11.2013 - 29 U 1883/13 - Irreführende Werbung mit Alter und Tradition des Unternehmenskennzeichens).

    - It is also misleading if a company advertises a business tradition since 1958 and conceals the fact that the originally founded company actually gave rise to several companies that belonged to a group of companies. This suggests that there is only one successor company (OLG Frankfurt/M. of 15.10.2015 - 6 U 167/14 - Irreführende Werbung mit Unternehmensge-schichte nach Unternehmensaufspaltung).

    "For many years" and "for many years".

    "Long-standing" and "years-long" are not the same thing. "Long-standing" is longer than "years-long." "Years-long" can be as short as two years. "Langjährig", on the other hand, is a long series of years (OLG Frankfurt a.M., judgment of 25.03.2021 - 6 U 212/19 - Werbung eines Unternehmens mit "jahrelanger Erfahrung").

    "Outlet" misleading for a retailer

    The BGH considered the designation of a retailer as an "outlet" to be misleading. In the case of an "outlet", one expects a favorable price precisely because the wholesale and retail trade is omitted. This is not the case for a retailer even if it operates over 500 stores (BGH I ZR 89/12 - Matratzen Factory Outlet).

     

    Misleading advertising about sponsorship or engagements

    Advertising with social, sporting, cultural or ecological commitments, e.g. for the environment, must not be deceptive (cf. Section 5 (1) sentence 2 no. 4 UWG). Anyone who untruthfully describes himself as the "supplier" or "partner" of a sponsored party or uses its symbols, for example, is acting in a misleading manner. However, there is no general obligation to inform about the amount of the sponsorship (e.g. a donation for a rainforest project) (BGH of 26.10.2006 - I ZR 33/04 - Regenwaldprojekt I). It must in any case be noteworthy (OLG Hamburg of 2.10.2002 - 5 U 43/02 - Bringt die Kinder durch den Winter).

     

    Misleading advertising with new opening or closing of business

    A "new opening" requires a closure. Anyone who advertises a "reopening after total renovation" but did not close his business during the renovation is acting in an anti-competitive manner (OLG Hamm of 21.03.2017 - 4 U 183/16 - Reopening after total renovation). It is also inadmissible to advertise the closure of a business if such closure is not intended (No. 15 of the Annex to Section 3 (3) UWG, "Black List; OLG Köln of. 18.9.2009, 6 U 79/09 - "Die letzten 6 Ausverkaufstage").