The First Civil Senate of the Federal Court of Justice, which is responsible, among other things, for competition law, today issued a ruling on the permissibility of a 'report card campaign' conducted by an electronics retailer. The defendant had advertised in a newspaper a promotional campaign where students received a €2 discount on the purchase price for every 'A' grade on their report card. The advertisement specified that the discount would apply to all product categories offered by the defendant. The plaintiff, the Federation of German Consumer Organisations, deemed this advertisement unfair, contending that it improperly solicited purchases from the targeted students and exploited their commercial inexperience.
The Regional Court dismissed the application for an injunction. The plaintiff's appeal was unsuccessful. In the opinion of the appellate court, while the advertisement did contain a solicitation to purchase directed at children, it did not violate the prohibition norm set out in number 28 of the Annex to § 3 (3) UWG*, because the general call to purchase referred not to specific products but to the defendant's entire product range. Furthermore, the advertisement did not exert undue or improper influence on the decision-making freedom of the targeted schoolchildren, nor did it exploit their commercial inexperience. Through the appeal, which was permitted by the appellate court, the plaintiff sought a judgment against the defendant.
The Federal Court of Justice dismissed the plaintiff's appeal. It determined that there was an insufficient product reference within the meaning of number 28 of the Annex to § 3 (3) UWG. This provision stipulates that a solicitation to purchase must be directed at specific products. A general solicitation referring to the entire product range is not adequate.
The Federal Court of Justice, concurring with the appellate court, also denied a violation of competition law under § 4 No. 1 and No. 2 UWG. In light of the required interpretation of these provisions in conformity with Union law, specifically Articles 8 and 9 of Directive 2005/29/EC concerning unfair commercial practices, it cannot be assumed that there was either an undue or improper influence on the freedom of choice or an exploitation of the inexperience of the schoolchildren targeted by the advertisement.
Judgment of the Federal Court of Justice of April 3, 2014 – I ZR 96/13 – Report Card Campaign
Lower Courts:
Regional Court Passau – Judgment of July 26, 2012 – 3 O 843/11
Higher Regional Court Munich – Judgment of December 6, 2012 – 6 U 3496/12
Source: Press release of the Federal Court of Justice
Goldberg Attorneys at Law 2014
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
Email: info@goldberg.de
