24. Jan 17

Eye-catching advertising featuring misleading guarantee promises

Advertising featuring a guarantee can be misleading if the guarantee promise is linked to conditions that are not clearly visible to consumers. That was the verdict of the Landgericht (LG) Frankfurt [Regional Court of Frankfurt].

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: Clear guidelines relating to what is termed “Blickfangwerbung” (attention-grabbing/eye-catching advertising) had already been set out by the Bundesgerichtshof (BGH), Germany’s Federal Court of Justice, it its ruling of October 15, 2015 (Az.: I ZR 260/14). The Karlsruhe judges held in that case that companies which place attention-grabbing emphasis on certain statements in their advertising must also point out the qualifications to these statements with a notice that can be clearly and unambiguously discerned by consumers.

A company offering, among other things, used electronic equipment on its online store had apparently failed to adhere to these guidelines. It promoted the equipment on its online shop with a 30-month guarantee, which it gave prominence to in an attention-grabbing manner. By clicking on one of the devices, consumers were once again confronted with this guarantee promise featuring no visible qualifications. Consumers were only directed to the conditions associated with the guarantee after clicking on a link below the product information. This was the first time they were informed that the guarantee only applies to equipment which is registered on the online store’s website no later than 30 days following the customer’s purchase.

A competition association brought a legal action against this, complaining that the advertising in question was misleading. The Landgericht Frankfurt granted the claim in its judgment of September 23, 2016 (Az.: 12 O 136/16), ruling that the eye-catching advertising gave customers the impression that the guarantee took effect in each and every case upon concluding a purchase agreement. However, the guarantee only became operative if the consumer also had the device registered with the dealer following the purchase. The BGH held that while attention-grabbing advertising may be permissible even in the absence of a clear notice in a given case, the advertising here lacked the necessary short and clear layout so that consumers take notice of it.

Although the ruling is not yet final, the dealer has since reacted by adding appropriate asterisk notices to the advertising.

Lawyers who are versed in the field of competition law can advise on implementing promotional campaigns as well as on fending off and enforcing claims.

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