In its decision of 11.3.2021, file number I -4 U 173/20, the Higher Regional Court of Hamm ruled that crossed-out price information in an online shop is anti-competitive if the crossed-out price information refers to prices of the stationary trade and not to online prices previously charged.
Price indications with crossed-out price often found in online shops
The defendant company operates an online shop for bicycles. The prices of the bicycles were marked with crossed-out prices. Below the crossed-out price was a lower price. In this way, the defendant company wanted to make it clear that the bicycles were available at a significantly lower price. However, the crossed-out prices referred to the prices of the stationary trade.
Crossed-out price information of the stationary trade in the online shop is misleading
Both the Regional Court of Bielefeld(judgment of 6 October 2020, Ref.: 15 O 9/20) and the Higher Regional Court of Hamm(decision of 11 March 202, I -4 U 173/20) considered the crossed-out prices, which referred to the price of the stationary trade and not to previously charged online prices, to be a breach of competition. This would mislead customers about the price actually previously charged and the discount actually not given.
In this context, the specific distribution channel had to be taken into account, because it had to be assumed that the prospective buyers would compare the prices of different suppliers on one and the same distribution channel, i.e. on the internet in this case. Consequently, only the online shop of the defendant and the pricing carried out there were decisive in this case.
The comparison of the allegedly old and new price suggests that it is an old price from the online shop, i.e. the same distribution channel. However, since the prices referred to those of the stationary trade, they are misleading and therefore illegal.
Unchanged crossed-out price indication in case of new price reduction inadmissible
The courts also objected to the duration of the price advertising. In principle, it was not objectionable if the original values were advertised as strike prices for a period of 6 months - provided that these referred to prices of the online trade. However, this is not permissible if a further reduction of the purchase price has occurred in the meantime. In such a case, the higher value may no longer be indicated. In the case of a new price reduction, it is simply misleading to continue to indicate the original highest price as the previous price. It is self-evident that the opposite higher price must have been valid until immediately before the price reduction. Companies are also obliged to adjust the crossed-out price if it continues to fall.
Conclusion
Incorrect price information in the online shop leads to a very high risk of warnings under competition law.
We are happy to advise you on the design of the price quotations in your online shop in order to avoid warnings or to help you enforce your injunctive relief against competitors if their price quotations are anti-competitive.
Sources:
Bielefeld Regional Court, judgment of 06.10.2020, ref. no.: 15 O 9/20
Higher Regional Court of Hamm, decision of11.3.202, I -4 U 173/20
GoldbergUllrich Lawyers 2021
Attorney at Law Christopher Pillat, LL.M. (Intellectual Property Law)
