The First Civil Senate of the Federal Court of Justice, which is responsible, inter alia, for competition law, has ruled that an advertisement stating "Only today large household appliances without 19% VAT" does not influence consumers in an unreasonable and unobjective manner within the meaning of Sections 3 and 4 No. 1 UWG in their decision to buy, even if the advertisement only appears on the day of the promised discount.
The parties are competitors, inter alia, in the field of trade in household appliances. On 4 January 2007, immediately after the increase of VAT from 16 to 19%, the defendants advertised on the internet with an advertisement which contained the statement "Only today, 4 January, large household appliances without 19% VAT". The plaintiff objected to the advertisement as being anti-competitive because the price reduction was only granted on the day the advertisement appeared with the consequence that, at any rate, working consumers were no longer able to compare prices due to the time pressure created by the advertisement.
The lower courts ordered the defendants to cease and desist as requested.
On appeal by the defendant, the Federal Supreme Court dismissed the action. It did not see any unobjective influence on the consumer in the objectionable advertising. The focus is on the mature consumer who - according to the Federal Supreme Court - can deal with such an incentive to buy in a rational manner. Even if consumers do not have the opportunity to make a detailed price comparison, they will not make rash purchasing decisions on the basis of advertising alone. This includes the possibility that individual consumers may decide to make a purchase even without a price comparison and thereby risk missing out on an even cheaper offer from one of the defendant's competitors.
Judgment of the Federal Supreme Court (BGH) of 31 March 2010 - I ZR 75/08
Lower courts:
LG Stuttgart, judgement of 28 September 2007 - 33 O 68/07 KfH
OLG Stuttgart, judgement of 17 April 2008 - 2 U 82/07
Source: Press release of the BGH
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)
E-mail: Info@goldberg.de
