Advertising Law

Decision of OVG NRW (Higher Administrative Court NRW) of 02/08/2011, file number: 13 B 1659/10

Advertising with medical foot care is reserved only for podiatrists. A masseuse who advertises with such service acts anti-competitively if he has no formation as podiatrist. The layman cannot identify this service only as part of the work of the masseuse but expects a special qualification within the range of the foot care. Such advertising represents a misleading of the patient.

Judgement of OLG Hamburg (Higher Regional Court Hamburg) of 04/08/2010, file number: 5 U 152/09

An advertisement must not be explicitly referred as “ad” when this is clearly one for the average reader. An explicit reference is not necessary in case that a separation is given, through the design of the ad, between editorial and advertisement content. Such design does not cover any  disguised advertising.

Judgement of the OLG Stuttgart (Higher Regional Court Stuttgart) of 11/11/2010, file number: 2 U 29/10

Consumers who provide their telephone number in a lottery do not automatically consent to telemarketing calls. In case that that consent is separately asked does not change anything since it cannot be assumed that the participant signs up with his real name. According to this, there is no effective consent. The burden of proof for the evidence that the participant of the lottery has given his real name shall be carried by the one who performs the marketing call. Shifting of the burden of proof would only happen in case that the data is not freely...

Decision of OLG Celle (Higher Regional Court Celle) of 24/02/2011, file number: 13 U 172/10

Test results can be used to advertise a product. However, it must be clearly indicated where the customer can get further information about the test. This readability generally requires of the use a font of at least size 6. Advertising using test results is therefore anti-competitive if the test results on the add are vaguely readable and thus not clear or easy to verify.

Judgement of BGH (Supreme Court) of 01/12/2010, file number: I ZR 55/08

A dentist who makes on an Internet platform a counteroffer to the colleague’s treatment and cost plan that the patient has published there, is not contrary to the question of fairness of the legal profession either to the professional standards. In case that this dentist makes a treatment contract with the patient and he pays a part of his fee in return for the use of the virtual marketplace, this is not an impermissible fee promise for the location of patients. Accordingly, the operator of the internet platform does not act anti-competitively.

Press release of BGH (Supreme Court) No. 29/2011 of 11/02/2011, file number: I ZR 164/09

Compliance with the so-called Double Opt-In procedure must be proved in the courts. The sole affirmation that the Double Opt-in has been followed is not enough. In the current case, the consent of the customer to receive marketing calls has been obtained within an online lottery. As evidence of this consent is not sufficient the submission of e-mails confirming the participation on the lottery since it is not proved whether the submitted telephone number is indeed the number of the sender of the confirmation.

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Judgement of OLG Hamm (Higher Regional Court Hamm) of 30/11/2010, file number: I-4 U 88/10

It is illegal to advertise with the effect of food that does not join the current scientific knowledge or which proof is not scientifically provided. Thus, the advertising of capsules that are supposedly “fat-eaters” stimulating the body’s own slimming hormone without providing any study proof is misleading. In particular, consumers who suffer from their obesity are often less critical to new products being advertised and therefore more vulnerable than other consumers.

Judgement of OLG Köln (Higher Regional Court Cologne) of 11/06/2010, file number: 6 U 23/10

A publisher is not allowed to advertise a new edition of a book, which has experienced changes in content and format, without informing about the true contents of the book compared to the original work. An example is the advertising of a new edition of a well-known book from Helmut Newton, which was published in a reduced format and in which 74 pictures were replaced by other motives. The Higher Regional Court Cologne confirmed the injunction against the publisher so that the use of six advertising messages, such as “Resurrection of the book”, is inadmissible....

Judgement of BGH (Federal Supreme Court) of 10/12/2009, file number: I ZR 195/07

Advertising with a significant discount offends the transparency controlled on § 4 No. 4 UWG (Fair Trade Act) if it is not clearly indicated that such discount should be only applied to the goods, which already are in stock. This applies even if the rebate is only temporary – as on the advertising day, for example.

Judgement of OLG Hamm (Higher Regional Court Hamm) of 22/04/2010, file number: I-4 U 205/09

Provided that products are offered on the Internet without reference about their availability, means that the goods can be immediately shipped. In case that an immediate delivery is not possible and there is no reference of this on the add, then this advertisement is misleading and anti-competitive.

Judgement of AG Berlin-Mitte (Local Court Berlin) of 12/01/2010, file number: 14 C 1016/09

Provides a mobile service to its users the possibility to register the cell number in order to apply for offered services and a confirmation short message follows after mentioned application, this SMS cannot be considered as a junk mail. The SMS has no sales promotion purpose but fulfils the information duty.

Judgement of OLG Oldenburg (Higher Regional Court Oldenburg) of 22/04/2010, file number: 1W 16/10

A company may principally advertise with a long family tradition. The so-called maturity stage, however, contains hidden quality features which may influence the customer and his purchase decision. Therefore, this maturity stage may occur in a certain extend. Advertising with the continuity of a company is only allowed if this continuity really lasted during the highlighted period. Advertising with a 110-years-old family tradition, although the company has been re-established 18 years ago, is inadmissible and anticompetitive.

Judgement of the OLG Hamm (Higher Regional Court Hamm) of 04/05/2010, file number: 4 U 32/10

Advertises a distributor of advertising material with the words "Free delivery within Germany and Austria for online orders" without pointing out that a surcharge of 4,80 € would be charged on orders under 50 € and that packaging expenses will be also calculated on online orders, so the distributor behaves anticompetitive compared to other competitors.

Judgement of LG Braunschweig (Regional Court Braunschweig) of 02/06/2010, file number: 22 O 514/10

A gym advertised in print media with a training belt “Slim Belly” which should bring “8,6 cm less waist within four weeks”. The campaign has not mentioned that, in addition, endurance training is required. Even during the proceeding, the studio operator could not demonstrate the sole effect of the belt, therefore, the advertising is misleading.

Judgement of LG Bielefeld (Regional Court Bielefeld) of 13/04/2010, file number: 4 O 293/06

It is agreed that the use of a logo is allowed only with a suitable copyright notation so that the originator of the logo can claim for compensation in case of offence. In the legal action of the Regional Court Bielefeld, a graphic artist, who agreed to make available the logo “Der Hausmeister”, complained that in case of using the logo, a well recognizably ©-Copyright notation with the name of the plaintiff shall be attached. However, the defendant used the logo on his company car as well as on his Internet site without the agreed notation. Consequently, a...

Press release No. 37/09 of LG München I (Regional Court Munich I) of 16/12/2009, file number: 7 O 17092/09

If a pharmaceutical company advertises a medicine using the adjective "Acute", the average consumer should expect quick effect in order to relief his ailment, an improvement of his physical situation within the next 20 – 60 minutes after taking the medication. If the effect takes place one day after the intake, a considerable temporal delay is present and, therefore, states a misleading advertising for the consumer.

Press release No. 251/2009 of BGH (Federal Supreme Court) about the judgement of 10/12/2009, file number: I ZR 195/07

The advertisement for a discount on a certain day at the rate of 19% is a basically allowed marketing method. Nevertheless, if the discount is only valid for the goods which are already on stock and not for the products ordered on this day, this must be clear and unambiguously informed in the add to the consumer. If there is no clear hint to the restriction of that discount, the seller acts anticompetitive due to the offence against the transparency requirement.

Judgement of OLG Hamburg (Higher Regional Court Hamburg) of 15/09/2009, file number: 7 U 1/09

There is a possibility to confer the own personality rights on third parties. This can happen, for example, after ending a contract. A complete cession of these rights is although not possible; a cession of, for example, commercial parts of single personality rights is allowed.

Judgement of LG Bochum (Regional Court Bochum) of 01/09/2009, file number: I-12 O 85/09

A forbearance debtor, who signs a cease and desist letter – due to illegal phone advertisement – subject to a condition subsequent, dispels a risk of recurrent infringement. The debtor would like to forbear through such formulation from the received obligations when his supposed illegal behaviour turns out as lawful, e.g. by law or high court decisions.