On 17 July 2008, the First Civil Senate of the Federal Court of Justice, which is responsible, among other things, for competition law, had to decide on the admissibility of a collection campaign that was also aimed at children and young people.
Nestlé S.A. had carried out a collection campaign for its chocolate bars (e.g. "Lion", "KIT KAT" and "NUTS"), in which a collection point (so-called "N-Screen") was printed on each package. 25 collection points could be redeemed for a voucher worth € 5 for a purchase at the internet mail order company amazon.de. The plaintiff, the Federal Association of Consumer Centres, had sued Nestlé for injunctive relief. It took the view that the campaign was anti-competitive because it exploited children's and young people's enthusiasm for collecting and could thus displace a rational purchasing decision on their part.
While the Regional Court had granted the claim, the Higher Regional Court of Frankfurt a. M. had dismissed the claim. The Federal Supreme Court confirmed this decision. Advertising campaigns that exploit the inexperience of children and young people are anti-competitive in view of the special need for protection of young consumers.
However, the Federal Supreme Court has clarified that not every targeted influencing of minors is anti-competitive.
Also, not every collection and loyalty campaign directed at minors was inadmissible. Even in the case of particularly vulnerable target groups, the average informed and attentive consumer of this group was to be taken into account. According to the Federal Court of Justice, the economic consequences of participating in the impugned collection campaign could also be sufficiently understood by minors. It was a product about which even minors had sufficient market knowledge. The bars had been sold during the promotion at their usual price of about 40 cents. Participation in the collection campaign was, moreover, within the scope of the pocket money regularly available to minors. The conditions of participation were also transparent for minors.
The legal situation under the EU Unfair Commercial Practices Directive did not yet play a decisive role in the decision.
Judgements: Federal Court of Justice (BGH) - Judgment of 17 July 2008 - I ZR 160/05 - N-Screensm, OLG Frankfurt - Judgment of 4 August 2005 - 6 U 224/04 (GRUR 2005, 1064), LG Frankfurt - Judgment of 14 October 2004 - 2/03 O 35/04
Source: Press release No. 141/2008 of the Press Office of the Federal Supreme Court of 18 July 2008, Herrenstr. 45 a, 76133 Karlsruhe, Tel. 0721-159-5013, Fax. 0721-159-5501, E-mail pressestelle@bgh.bund.de.
Note from Goldberg Lawyers:
If the EU Directive on Unfair Commercial Practices, which has been directly applicable to German law since 12 December 2007, had been taken into account, the BGH would probably have arrived at a different legal assessment of the present case.
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
E-mail: m.ullrich@goldberg.de
