In its judgement of 15.6.2021, AZ. 1 HKO 701/20, the Regional Court of Ingolstadt ruled that the goods offered in an online shop must be available and deliverable at all times. In the event of an imminent restriction of product availability, the online shop operator must immediately take action and include a corresponding notice or immediately stop advertising the product.
Warning due to non-deliverable goods
The defendant company offered goods in its online shop at the turn of the year 2019/2020 with a web promotion under the slogan "das große S (...) Jahresfinale. 7 days - 7 smashers". A clock running backwards showed the remaining time of the offer.
On the seventh day of the promotion, a customer wanted to buy one of the promotional products in the online shop. The company operating the online shop then informed the customer that the product was sold out.
Non-deliverable goods = breach of competition
The Regional Court of Ingolstadt ruled that the defendant company had committed an infringement of competition by failing to deliver the promotional goods. In particular, the defendant company had failed to stop advertising the products in time. However, this had been possible for the company without further ado in good time.
The consumer could expect that, in the case of a disputed promotion, the products mentioned therein would be permanently in stock and available for delivery during the promotion period if the advertising company maintained the offer of goods or did not provide a notice to the effect that the offer was only valid as long as the goods were in stock. In particular, it had to be taken into account that the defendant company displayed a clock running backwards during the advertising campaign. This led to the consumer's justified assumption that the goods would be available until the end of the promotion. In contrast to a print advertisement, the operator of an online shop has the permanent possibility to provide a corresponding indication that the goods are not available. Since such offers were "local offers", a particularly high level of consumer protection was necessary. In contrast, an online shop operator would not be unreasonably burdened if he was obliged to point out a fine limitation of the availability of the advertised goods.
What does the decision mean for your online shop?
The ruling has high consequences for operators of online shops. When advertising with a limited offer, you as an online shop operator must ensure that the offered goods can be delivered at any time. If this is not the case, you are obliged to point out in good time that the advertised goods can no longer be delivered. Otherwise you will be acting in an anti-competitive manner and you will be threatened with warnings under competition law.
We are happy to advise you on the design of your online shop and help you avoid warnings under competition law. Please do not hesitate to contact us.
Source: LG Ingolstadt, judgement of 15.6.2021, AZ. 1 HKO 701/20
GoldbergUllrich Lawyers 2021
Attorney at Law Christopher Pillat, LL.M. (Intellectual Property Law)
