Anyone who denotes goods as available for delivery despite the fact that they are sold out is violating competition law. This comes from a ruling of the Oberlandesgericht (OLG) Hamm [Higher Regional Court of Hamm] (4 U 69/15).
GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: The OLG Hamm had to rule on a case concerning a dispute between two bicycle dealers that sell electric bicycles, among other things, on their online stores. One of these dealers had promoted an electric bicycle on its website, yet also claimed that only a small range of models were still available and that the expected delivery time was two to four days. The appropriate frame size could be chosen from a list.
One customer ordered the advertised bicycle in the frame size 54 and was notified again that there were few models left in stock for delivery within the specified timeframe. The purchase price had to be paid by transfer in advance. However, the model in this frame size was in fact no longer available for delivery, the last model having been sold several days beforehand. Instead, the dealer offered the successor model that was supposed to come onto the market a few weeks later.
The plaintiff considered this to be an illegal “Lockvogelwerbung” (teaser promotion), but the dealer did not yield to the requested cease-and-desist declaration. The Landgericht Bochum [Regional Court of Bochum] ultimately forbid the dealer from continuing to advertise offers if the goods are not in stock and cannot be supplied within the stated delivery period. The OLG Hamm subsequently confirmed the ruling on appeal.
It shared the view that this was an illegal teaser promotion and thus violated Germany’s Gesetz gegen den unlauteren Wettbewerb (UWG) [Unfair Competition Act], ruling that the dealer ought to have informed the customer of the product’s limited availability. The Court went on to say that the notice “nur noch wenige Exemplare auf Lager” (few models left in stock) did not go far enough in informing customers about the limited stock for the product in question; rather, it was said to prompt customers into making a quick decision regarding the purchase. The OLG held that the relevant provision of the UWG also applies to online trading and rejected the argument that the customer had not been lured into the store and then arguably induced to buy another product. The Court concluded that the temptation to accept the proposal to buy another product had been particularly great in light of the fact that the purchase price had been paid in advance when ordering online.