If an advertisement constitutes an “invitation to purchase”, it needs to include all of the information necessary for the consumer. That was the verdict of the Bundesgerichtshof (BGH), Germany’s Federal Supreme Court (Az.: I ZR 41/16).
In the instant case, a company had advertised fully furnished and equipped kitchens in brochures as “all-inclusive offers”, i.e. including electrical appliances. However, there was a lack of more detailed information in relation to these appliances, e.g. concerning the manufacturer, brands or model names. In its ruling of March 2, 2017, the Bundesgerichtshof held that the advertising was anti-competitive because it violated Germany’s Gesetz gegen den unlauteren Wettbewerb (UWG) [Unfair Competition Act].
We at the commercial law firm GRP Rainer Rechtsanwälte note that a violation of the UWG has occurred if having regard to all of the facts and circumstances material information has been withheld from the consumer that he or she requires in order to make an informed commercial decision, and withholding this information is liable to induce the consumer into reaching a decision that he or she would not have made if they had been cognizant of this information. According to the case law of the BGH, if goods or services are advertised in such a way that consumers can immediately reach a purchase decision then the information pertaining to the product is considered to be material.
In the case in question, the BGH ruled that the promotional brochures had been prepared in such a way that the advertising did not simply attract consumers attention but also made it possible for them to make a purchase decision. For this reason, the advertising was said to constitute an invitation to purchase. The Court went on to say, however, that information had been withheld from the consumer that was material to his or her decision to purchase, namely more detailed information regarding the electrical appliances, and that it was only with this information that consumers would have been able to compare the offers of different vendors and then come to a decision. The BGH noted that information is being withheld from the consumer if it falls within the vendor’s sphere of responsibility or business or the latter ought to have been able to provide it without much effort.
If advertising violates competition law, this can lead to formal warnings, damages claims or injunction suits. Lawyers who are versed in the field of competition law can assist companies in fending off or enforcing claims arising from violations of competition law.