In its judgment of June 15, 2021, file no. 1 HKO 701/20, the Ingolstadt Regional Court ruled that products offered in an online shop must be available and deliverable at all times. Should there be an impending restriction in product availability, the online shop operator must immediately take action, include a corresponding notice, or cease advertising the product without delay.
Cease and Desist Letter for Unavailable Goods
At the turn of the year 2019/2020, the defendant company ran a promotional campaign in its online shop, offering goods under the slogan 'the big S (...) Year-End Finale. 7 Days – 7 Blockbusters'. A countdown timer indicated the remaining duration of the offer.
On the seventh day of the promotional campaign, a customer attempted to purchase one of the advertised products from the online shop. The company operating the online shop subsequently informed the customer that the product was sold out.
Unavailable Goods = Violation of Competition Law
The Ingolstadt Regional Court ruled that the defendant company had committed a violation of competition law by failing to deliver the promotional goods. Specifically, the defendant company had neglected to cease the promotion of the products in a timely manner, which would have been easily possible for the company to do.
Consumers can expect that products mentioned in a contested promotional campaign will be continuously in stock and deliverable throughout the promotional period, provided the advertising company maintains the product offer and does not provide any indication that the offer is only valid while stocks last. It is particularly relevant that the defendant company displayed a countdown timer during the promotional campaign. This leads consumers to legitimately assume that the goods will be available until the end of the promotion. Unlike print advertising, an online shop operator has the constant ability to provide a corresponding notice regarding the unavailability of goods. Given that such offers constitute "bait offers," a particularly high level of consumer protection is necessary. Conversely, an online shop operator is not unreasonably burdened if required to indicate any fine restriction on the deliverability of the advertised goods.
What does this decision mean for your online shop?
This judgment has significant consequences for online shop operators. When advertising a limited-time offer, as an online shop operator, you must ensure that the advertised goods can be delivered at all times. Should this not be the case, you are obligated to provide timely notice that the advertised goods can no longer be delivered. Failure to do so constitutes anti-competitive behavior and may result in competition law warnings.
We would be pleased to advise you on the structuring of your online shop and assist you in avoiding competition law warnings. Please feel free to contact us.
Source: Ingolstadt Regional Court, Judgment of 15.6.2021, Ref. 1 HKO 701/20
GoldbergUllrich Attorneys at Law 2021
Attorney at Law Christopher Pillat, LL.M. (Intellectual Property Law)
