Unfair Competition Navigationstitel:

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.

The Member States hat time until January 20, 2011 to implement the new directive 2009/48/EC of the European Parliament and of the Council on the safety of toys – these implementing regulations should be applied from July 20, 2011. We have compiled for you the important innovations mentioned in the toys directive and also in the second regulation of the equipment and product security law and which should be followed by manufactures and online sellers.

With the growing number of Smartphone users is also increasing the interest from companies to remain present in the mobile business. Applications for mobile phones - so-called apps - are already an important economic factor, which should not be underestimated. Through these apps, it is possible more than order rail tickets through mobile phones, full web pages are optimized for Smart phones including complete ordering processes. As in ecommerce, numerous statutory duties must be considered by those companies. 

Judgement of LG Darmstadt (Regional Court Darmstadt) of 06/04/2011, file number: 25 S 162/10

Following clause of the terms and conditions “The special price is only valid with full payment at the shipping and billing date. In case of late or incomplete payment, the special price is not longer valid” has been declared invalid by the Regional Court Darmstadt. First, the term “billing” is too vague. For the customer is not clear whether this date refers to the invoice date or to the delivery date. Additionally, the statutory right of retention of the customer is so limited through the clause that an exclusion of the...

Judgement OLG Hamm (Higher Regional Hamm) of 01/02/2011, file number: I-4 U 196/10

Online shops operators have to specify on their website the delivery costs to each supplying country. An indication on the website stating that the customer will be notified on request about the actual shipping prices is not enough.

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.

Judgement of LG Hamburg (Regional Court Hamburg) of 04/08/2009, file number: 312 O 365/09

Comparative advertising is a legitimate instrument to inform the consumers about the benefits of the advertised product.  The reference to distinctive marks of a competitor, such a price comparison, is allowed provided that the stated facts are objectively traceable and the information is possible to verify.

Judgement of LG Köln (Regional Court Köln) of 28/10/2010, file number: 31 O 76/10

Clients of “Germanwings” will no longer be discouraged by complicated and difficult to understand claims forms regarding the reimbursement of the already paid taxes and airport charges. The consumer was prejudiced through the handwriting filling and the demand to submit detailed, often redundant, information concerning the restitutory right.

In the two-day event “IT Law – organise and manage contents, communication and business legally steady on the Internet” within the lecture series “JuraBasics – Law for non-lawyers” of the University of Augsburg, certified lawyer Hagen Hild will impart practise-oriented knowledge. Lawyer Hild is a certified lawyer in IT-Law and in Protection of Industrial Property and daily advises clients in this area for almost 10 years. The event will take place on Friday 16/07 and Saturday 17/07 from 9 am to 5:30 pm.

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 the LG Hamburg (Regional Court Hamburg) of 02/09/2010, file number: 416 O 78/10

Service station operators are not allowed to sell any alcoholic drinks to minors. To prove such an infringement of the competition law, a minor is permitted to act as an underage test buyer provided that the minor purchases the alcohol only for the purposes of the test purchase and not for the own consumption.

Judgement of BGH (Supreme Court) of 20/05/2010, file number: Xa ZR 68/09

a) Following clause, found in the general terms and conditions of an airline, which offers its services almost exclusively as distant sales, has been reviewed:

“Since security and administrative costs have increased, Ryanair will not accept any cash payments for the tickets, fees and costs for the excess luggage and sport equipment.”

b)  Following clause of the general terms and conditions of a company of that kind disadvantages the passenger inappropriately, contrary to the principle of equity and good faith and is, therefore, invalid:

"(1) credit card fee per...

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

The advertising of a company with the words "Online orders will be delivered free of charge within Germany and Austria” is inadmissible and therefore misleading since the consumer is not informed that extra costs will be charges in case that that the order amounts less than 50 euro net. The customer is thus misled concerning the end price to be paid.

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 LG Düsseldorf (Regional Court Düsseldorf) of 03/02/2010, file number: 12 O 173/09

An online travel portal, as a mediator of flights, must indicate the total price of a flight including any applicable booking fees, as soon as the price is indicated as “total price”. A small asterisk note is not enough if the fees are not transparently specified.

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.