22. Nov 18

OLG Köln: Unfair advertising due to false statements about discount promotion

Caution is in order if someone is offering discounts on “fast alles”, i.e. “almost everything”. Advertising featuring a discount promotion that excludes large sections of the product range from the discount is misleading and unfair. That was the verdict of the Oberlandesgericht (OLG) Köln, the Higher Regional Court of Cologne.

Misleading advertising or misleading business activities are a violation of the Gesetz gegen den unlauteren Wettbewerb (UWG), Germany’s Act Against Unfair Competition. We at the commercial law firm GRP Rainer Rechtsanwälte note that violations of competition law can give rise to injunctions suits or damages claims.

In a judgment from 20 April 2018, the 6th Civil Division of the OLG Köln ruled that a furniture store is not allowed to advertise that it is offering a 30 per cent discount on almost everything if in fact a large proportion of the product range is excluded from the discount (Az.:6 U 153/17).

The furniture store had boasted in a brochure about a “30 per cent discount on almost everything”. The German word “fast” (“almost”) was printed vertically in the crease of the folded brochure in considerably smaller and less conspicuous writing than the rest of the text. While the Division left open the question of whether this layout was enough to significantly mislead consumers in its own right, the numerous exceptions to the discount promotion proved to be too much for the judges. For instance, the products of 40 producers were excluded from the discount promotion in the same way as goods that were already reduced or offers from the furniture store’s brochures, advertisements, mailings etc.

It was mentioned in a speech bubble in the brochure that the discount applied to upholstery furniture, wall units, kitchens, bedrooms as well as many other product categories – “einfach fast alles” (“almost everything”). The OLG held that this list was misleading to consumers, stating that the latter could only construe the list to meant that the discount applies without restrictions, with the exception of product categories not included in the list, e.g. garden furniture.

The Division went on to further criticize the statements on display in the advertising relating to the discount as being objectively wrong and a brazen lie without reasonable justification, and that these kinds of false statements could not be rectified by an explanatory note.

Lawyers who are experienced in the field of competition law can advise on matters pertaining to this field of law and enforce or fend off claims arising from violations of competition law.

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