Advertising letters with credit cards are permissible under competition law

In 2008, Deutsche Postbank AG sent personally addressed advertising letters to a large number of its customers, enclosing a credit card issued in the name of the addressee. In order to use the credit card, the bank customer had to sign a form called an activation order and send it to the defendant bank. The credit card was to be free of charge for the first year.

The plaintiff, the Federal Association of Consumer Centres (Bundesverband der Verbraucherzentralen), considered this to be a violation of competition law, in particular under the aspects of an unobjective influence on the freedom of decision of the addressees of the advertising letter (section 4 no. 1 UWG) and an unreasonable harassment (section 7 para. 1 UWG). He filed a claim against the defendant for injunctive relief and reimbursement of warning costs.

The Regional Court and the Court of Appeal dismissed the action. The Federal Supreme Court dismissed the plaintiff's appeal.

The Federal Court of Justice confirmed the opinion of the Court of Appeal that there was no undue influence on the freedom of decision of the defendant's customers who had been written to pursuant to Section 4 No. 1 UWG. Consumers know how a credit card works. They know from the advertising letter that the credit card sent can only be used after the activation order has been returned, through which a credit card contract with Postbank is concluded against payment.

The customer is also not unreasonably harassed within the meaning of Section 7 (1) UWG by the sending of the credit card. Because of the credit cards issued in their name, customers will often feel obliged to destroy the cards before disposing of them - for example by cutting them up - in order to make their personal data unrecognisable and thus prevent misuse. However, this increased effort does not yet lead to an unreasonable nuisance for the addressees. Whether the advertising measure exceeds the threshold of unreasonableness must be determined by weighing the protected interests of the addressee and the advertising company. According to the weighing required thereunder, the interests of the advertising company in addressing its customers in a targeted manner outweigh the intrusion into the private sphere of the addressee of the advertising letter, for whom a secure disposal of the credit card is a somewhat greater effort compared to usual advertising letters.

The provision of Section 675m (1) sentence 1 no. 2 of the German Civil Code (BGB), which prohibits the unsolicited sending of payment instruments, only came into force after the contested advertising measure. The provision was therefore irrelevant for the examination of the admissibility of the advertising under competition law.

 

Judgment of the BGH of 3 March 2011 - I ZR 167/09 - Credit card advertising

Lower courts:

Bonn Regional Court - Judgment of 23 April 2009 - 14 O 18/09

Cologne Higher Regional Court - Judgment of 2 October 2009 - 6 U 95/09

 

Source: Press release of the BGH

 

Goldberg Attorneys at Law 2011

Attorney at Law Michael Ullrich, LL.M. (Information Law)

Specialist lawyer for information technology law (IT law)

E-mail: info@goldberg.de

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