The First Civil Senate of the Federal Court of Justice (BGH), which is responsible for competition law, among other things, ruled on a television advertisement for a competition in which only buyers who had previously purchased the advertised product could participate.
The parties are manufacturers of liquorice and fruit gums. The defendant advertised on television from February 2011 with "GLÜCKS-WOCHEN". By buying five packages at a price of about € 1 each and sending in the receipts, there was a chance to win one of 100 "gold bear bars" worth € 5,000 each in a raffle. In the commercial, TV presenter Thomas Gottschalk met two families with children in the supermarket.
The plaintiff considers the advertising to be anti-competitive because it exploits the commercial inexperience of children and young people. She therefore sued the defendant for injunctive relief.
The action was successful in the lower courts. According to the Court of Appeal, the lottery linkage constitutes an unfair business practice due to the circumstances of the individual case. In this context, the stricter standard of care of § 3 para. 2 sentence 3 UWG had to be applied and the view of children and adolescents had to be taken into account, who could be induced by the advertising to make a purchase on demand. The Federal Court of Justice overturned the appeal judgement and dismissed the action.
Sweepstake tie-ins may be prohibited under Section 4 no. 6 UWG in individual cases if they violate professional diligence. In the opinion of the Federal Court of Justice, the standard of care under Section 3 (2) sentence 3 UWG does not apply to the assessment of the sweepstake in the case at issue, since the impugned advertising was not likely and foreseeable to have a significant influence on the commercial behaviour of children and adolescents alone. The defendant's products are equally popular with children and adults. A competition linked to the sales of these products is therefore foreseeably capable of influencing the purchasing behaviour of adults as well. Therefore, the understanding of an average consumer is decisive for the assessment of the dispute.
On this basis, the television advertising complained of does not violate professional diligence. The costs of participating in the lottery are made clear. Nor are any inaccurate chances of winning suggested.
The defendant's television advertisement also does not violate the provisions of competition law specifically serving the protection of children and adolescents. It does not contain a direct invitation to children to buy (No. 28 of the Annex to § 3 para. 3 UWG). It is also not suitable to take unfair advantage of the commercial inexperience of minors (§ 4 No. 2 UWG).
Judgment of the Federal Supreme Court of 12 December 2013 - I ZR 192/12 - GLÜCKS-WOCHEN
Lower courts:
Cologne Regional Court - Judgment of 8 February 2012 - 84 O 215/11
Cologne Higher Regional Court - Judgment of 21 September 2012 - 6 U 53/12, GRUR-RR 2013, 168 = WRP 2013, 92
Source: Press release of the BGH
Goldberg Attorneys at Law 2013
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
