Product images must match the product being sold

In a recent decision (judgement of 04.08.2015, AZ: I-4 U 66/15), the Higher Regional Court of Hamm ruled that product images in online shops and on sales portals must match the product sold.

In the case of articles in online shops, the article is often provided with a product picture on which other items are shown, but which are not also sold. The Higher Regional Court of Hamm also had to decide on such a case. In the case of the advertised product in the Amazon offer in dispute, a parasol with stand and base plates was shown in the product photo. However, the parasol was only sold with a stand and without the base plates. The product picture thus displayed more items than were actually sold. In the product description, it was also pointed out in detail that only the parasol with the stand was being sold and that the base plates were not being sold at the same time.

However, the OLG Hamm still considered this combination of product image and product description to be misleading.

The OLG Hamm argued that according to the provision of Section 5 (1) sentence 2 no. 1 UWG, a commercial act is misleading if it contains untrue information or other information likely to deceive about essential characteristics of the goods. According to this provision, the essential characteristics of the goods also expressly include their equipment and accessories. The Higher Regional Court of Hamm held that the product image gives the impression that the scope of delivery also includes the concrete slabs seen in the image of the sunshade set up by means of a slab stand, although these concrete slabs are not actually included in the goods offered according to the seller's ideas. The judges further argued that a prospective buyer of an online offer would erroneously assume from this representation that the concrete slabs shown in the photograph and required to weigh down the umbrella stand were also included in the offer. The judges further held that a picture of a product in an advertisement is of decisive importance for the product to be delivered in the context of the later conclusion of the contract, since visual impressions are decisive especially when viewing internet pages. Therefore, the general public will take a product image of an internet advertisement as a decisive part of the product description.

The defendant's objection that product images on the internet platform "Amazon" are not necessarily posted by the specific seller and that the buyer therefore does not rely on the individual image also does not apply in the opinion of the OLG Hamm. In the opinion of the OLG Hamm, the average consumer rather assumes that the product image on the internet platform "Amazon" also originates from the respective seller and that the seller intends to make the content of this image his own in any case when he posts an offer of goods on the aforementioned internet platform.

The judges once again explicitly stated that a Marketplace trader on Amazon is also liable for misleading statements on Amazon.

They also stated that the concrete slabs shown were not to be regarded merely as more or less decorative accessories to the parasol shown, since without the concrete slabs shown the parasol offered could not be set up with the necessary stability and was therefore not functional. Against this background, a consumer will therefore understand the illustration of the concrete slabs to mean that these concrete slabs are part of the scope of delivery.

In order to eliminate the existing misleading effect of the product picture, it is rather necessary to point out by means of a clear notice in the eye-catcher that corresponding components that are present in a product photo do not belong to the scope of delivery. In the opinion of the judges of the OLG Hamm, an asterisk notice, which can often be seen in online shops, is only suitable for this purpose to a limited extent. In the opinion of the OLG Hamm, it is not sufficient if the advertised article is shown on a photo together with other articles without which it cannot be used and the informative note that articles are shown on the photo that are not also sold is only made within the product description.

In summary, it can be stated that the common practice in many online shops of depicting products with additional accessories is problematic under competition law. In a recent decision on the illustration of product offers, the Federal Court of Justice also stated that those who offer goods on the internet must ensure that only what is actually sold is shown in a photograph. Therefore, accessories that are absolutely necessary for the operation or use of a product should not be depicted in the product photo if they are not part of the scope of delivery. If one does not want to do without accessories in photos, clear information must be given in the eye-catcher of the picture as to which items are not included in the sale.

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Goldberg Lawyers 2015

Michael Ullrich, LL.M. (Information Law)

Lawyer and Specialist lawyer for information technology law (IT law)