A legal dispute took place before the Berlin Regional Court (judgment of November 7, 2023), the outcome of which should be of interest to many operators of online stores, especially those offering clothing.
A competition association, to which a considerable number of traders who sell clothing goods belong, took action against an operator of an online store that offered comparable clothing goods.
By way of a preliminary injunction, the applicant competition association sought an injunction against the distance selling of clothing without specifying the material of the garments immediately prior to the conclusion of the contract.
Information on the product page not sufficient
The material information on the fabric used for the textile products was on the product detail page, but neither on the product overview page for clothing products nor on the final order page (shopping cart), where the order button is located.
A product could be placed in the shopping cart either from the product detail page or from the product overview page, from which the order button could be clicked immediately. The product detail page could only be accessed from the shopping cart by clicking on the product. The information about the material composition of the product was only available there.
The trade association was vindicated in this case.
The Berlin Regional Court ruled that the operator of the online store had acted unfairly in accordance with Section 3a UWG, as it had breached Section 312j (2) BGB. This serves to protect consumers and is therefore a market conduct rule within the meaning of Section 3a UWG.
Immediately before ordering
Pursuant to Section 312j (2) BGB, in the case of a consumer contract in electronic commerce that obliges the consumer to pay, the trader must provide the consumer with the information pursuant to Article 246a Section 1 (1) sentence 1 numbers 1, 5 to 7, 8, 14 and 15 of the Introductory Act to the German Civil Code in a clear and comprehensible manner in a prominent manner immediately before the consumer places his order.
However, the operator of the online store did not meet these requirements, as the product information could only be viewed by clicking on the product detail page and without a clear indication that the material composition was located there.
Rather, the information should have been located where the customer completed the order process.
Section 312j (2) BGB serves to implement Directive 2011/83/EU. According to this directive, the information to be provided immediately before the order is placed should be displayed in the immediate vicinity of the order button. This is not guaranteed by a mere link.
Conclusion
Online retailers must ensure that the key features of the products sold are displayed directly next to the order button. A link to these features is not sufficient. Moreover, it is not possible to say in general terms which features are essential for a product. This depends much more on the type of product and is therefore dependent on the individual case.
