Advertising with crossed out prices at opening offer

The First Civil Senate of the Federal Court of Justice, which is responsible, inter alia, for competition law, has ruled that an advertisement with highlighted introductory prices, which are contrasted with higher crossed-out prices, is only permissible if it is clear from the advertisement how long the introductory prices are valid and from when the crossed-out higher prices are required.

The defendant, who is active in the carpet trade and operated a branch in Friesenheim near Freiburg in 2007, advertised his carpet collection "Original Kanchipur" in a brochure enclosed with the Badische Zeitung with introductory prices, which he contrasted with significantly higher crossed-out prices. In the text of the brochure, he pointed out that the collection was a world novelty, for the market launch of which he, as the manufacturer, could give high discounts.

The plaintiff, a competitor from Freiburg, considered this advertising to be misleading and a violation of the transparency requirement under competition law. Its action was successful in both lower instances. The Federal Supreme Court dismissed the appeal filed by the defendant.

The Federal Supreme Court confirmed the opinion of the Court of Appeal that the conditions for claiming this sales promotion were not clearly and unambiguously stated in the advertisement - as required by Section 4 No. 4 UWG. Furthermore, the advertisement violated the prohibition of misleading. Whoever advertises with a higher crossed-out price must make clear what this price refers to. If it was the regular price which the trader charged after the end of the introductory advertisement, he had to indicate from when he would charge this regular price. Unlike in the case of a clearance sale, in which the merchant is forced by case law to impose a time limit, an introductory offer that advertises higher prices with a line through it must thus have a time limit.

Judgment of the Federal Court of Justice (BGH) of 17 March 2011 - I ZR 81/09 - Original Kanchipur

Lower courts:

LG Freiburg - Judgment of 7 March 2008 - 12 O 153/07

OLG Karlsruhe - Judgment of 14 May 2009 - 4 U 49/08

 

Source: Press release of the BGH

 

Goldberg Attorneys at Law 2011

Attorney at Law Michael Ullrich, LL.M. (Information Law)

Specialist lawyer for information law (IT law)

E-mail: info@goldberg.de

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