In its ruling dated November 10, 2022, Case No. I ZR 241/12, the Federal Court of Justice (BGH) had to decide whether Internet retailers are obliged to inform consumers about manufacturer warranties. Previously, the Higher Regional Court of Hamm, in contrast to the Regional Court of Bochum (LG Bochum, judgment dated 21.11.2018 - I-13 O 110/18), had considered missing or incomplete information about manufacturers' warranties to be violations of competition law that could be subject to a warning.
Are statements about manufacturer warranties material information?
According to Sec. 5a (1) UWG, as amended, an entrepreneur acts unfairly if he misleads a consumer or market participant by withholding material information. The relevant question is therefore whether manufacturers' warranties constitute material information under Section 5a (1) UWG.
Manufacturer's warranties are only essential information if they are specifically advertised
The Federal Court of Justice (BGH) has now ruled that manufacturer's warranties can be material information under Section 5a (1) of the German Unfair Competition Act (UWG) if an Internet retailer specifically advertises the manufacturer's warranty in order to convince consumers to make a purchase on the basis of the manufacturer's warranty. The information about the manufacturer's warranty must be in the foreground and be an essential feature of the offer, so that the information about the manufacturer's warranty is a real purchase argument for the consumer. If the manufacturer's warranty is only mentioned in product information sheets or other attachments to the object of purchase, and if the information about the manufacturer's warranty does not serve to promote the sale, missing or incomplete information about the manufacturer's warranty is not harmful and does not constitute withholding of essential information.
What does the BGH's decision mean for you as an Internet merchant?
If, as an Internet merchant, you advertise products with the manufacturer's warranty as a selling point and the warranty is a central or decisive feature of the offer, you must ensure that the information about the warranty is complete and, above all, truthful. If, on the other hand, you only refer to a manufacturer's warranty in passing in your offers, without this information serving to promote sales, you do not have to provide any information about the warranty. The decision as to whether the information about the manufacturer's warranty constitutes material information in your offer cannot be made in a general manner, but must be examined in each individual case.
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GoldbergUllrich Lawyers 2022