The First Civil Senate of the Federal Court of Justice, which is responsible, among other things, for fairness law, ruled today that it is generally not unfair for a company to redeem discount coupons from its competitors.
The defendant operates drugstores nationwide. It advertised that in its shops customers could present 10% discount coupons from competitors and receive a corresponding discount on their purchase.
The plaintiff, the Zentrale zur Bekämpfung unlauteren Wettbewerbs (Central Office for Combating Unfair Competition), considers this advertising to be anti-competitive from the point of view of deliberate obstruction of the other drugstores which issued the discount coupons. The defendant's primary aim was to adopt the competitors' advertising measures as its own and to prevent their success. The advertising was also misleading because it suggested to customers that the defendant had agreed with its competitors to mutually recognise discount vouchers. The plaintiff therefore sued the defendant for injunctive relief and compensation for warning costs.
The action was unsuccessful in both lower courts. The Federal Supreme Court dismissed the plaintiff's appeal.
The defendant cannot be accused of an unfair intrusion into another's customer base. The recipients of discount vouchers are not yet customers of the advertising company for their next purchases. This also applies if the vouchers are sent to holders of a customer card or participants in a customer loyalty programme. Whether such vouchers are used is something the consumer regularly decides only later. Moreover, insofar as the defendant advertises with display units in its branches, it specifically addresses its own customers and not those of third parties. Furthermore, consumers are not prevented from redeeming the vouchers at the respective issuing company. Rather, they are given the opportunity to obtain the same economic advantage by purchasing from the defendant. This further chance for consumers to obtain discounts is not an unfair advertising hindrance to competitors. The defendant is free to make special efforts to attract those customers who are wooed by its competitors with vouchers and customer loyalty programmes.
There is also no unfair misleading. The defendant's advertising clearly refers only to its company. From the consumer's point of view, it is far from being possible to see a concerted advertising measure by several companies.
Judgment of the BGH of 23 June 2016 - I ZR 137/15
Lower courts:
LG Ulm - Judgment of 20 November 2014 - 11 O 36/14 KfH, WRP 2015, 491
Stuttgart Higher Regional Court - Judgment of 2 July 2015 - 2 U 148/14, WRP 2015, 1128
Source: Press release of the BGH
Goldberg Attorneys at Law 2016
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
