The First Civil Senate of the Federal Court of Justice, which is responsible, inter alia, for competition law, today ruled on the admissibility of a "report card campaign" of an electronics store. In a newspaper advertisement, the defendant advertised a promotion in which pupils received a purchase price reduction of €2 for every A in their report card. The advertisement stated that the reduction was to apply to all product ranges offered by the defendant. The plaintiff, the Federal Association of Consumer Centres (Bundesverband der Verbraucherzentralen), considered this advertisement to be unfair, as it inadmissibly invited the pupils addressed to make a purchase and exploited their inexperience in business.
The District Court dismissed the application for an injunction. The plaintiff's appeal was unsuccessful. According to the Court of Appeal, the advertisement did contain an invitation to purchase directed at children. However, it did not violate the prohibition rule in No. 28 of the Annex to § 3 para. 3 UWG* because the general appeal to buy did not refer to specific products but to the defendant's entire product range. The advertising also did not exert an unreasonable, unobjective influence on the freedom of choice of the schoolchildren addressed and did not exploit their inexperience in business. In his appeal, which was allowed by the Court of Appeal, the plaintiff sought to have the defendant convicted.
The Federal Supreme Court dismissed the plaintiff's appeal. It held that there was a lack of a sufficient product reference within the meaning of number 28 of the Annex to Section 3(3) UWG. This provision presupposes that there is an appeal to buy directed at specific products. A general call to buy referring to the entire range of goods is not sufficient.
The Federal Supreme Court - like the Court of Appeal - also denied a violation of competition law pursuant to § 4 no. 1 and no. 2 UWG. In the required interpretation of these provisions in conformity with Union law in the light of Art. 8 and 9 of Directive 2005/29/EC on Unfair Commercial Practices, neither an unreasonable and unobjective influence on the freedom of choice nor an exploitation of the inexperience of the schoolchildren addressed by the advertising can be assumed.
Judgment of the BGH of 3 April 2014 - I ZR 96/13 - Zeugnisaktion
Lower courts:
LG Passau - Judgment of 26 July 2012 - 3 O 843/11
OLG Munich - Judgment of 6 December 2012 - 6 U 3496/12
Source: Press release of the BGH
Goldberg Attorneys at Law 2014
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
