Amazon offer with unclear scope anticompetitive?

Must an online retailer precisely designate the scope of delivery of the goods offered as part of the offer, or are corresponding details in the product description sufficient? This question had to be clarified by the Regional Court (LG) Arnsberg.

In the case heard before the LG Arnsberg, two online retailers disputed the obligation to precisely determine the scope of delivery of a product within their sales offer on Amazon if the product image used goes beyond what is being offered.

One online retailer considered it anticompetitive that his competitor was selling sun umbrellas and accessories in various configurations to consumers via the Amazon sales platform without pointing out that the offer price shown there includes the umbrella stand, but not the concrete slabs depicted in the product image.

The Amazon seller refused to change his online offer because, in his view, the scope of delivery was sufficiently indicated in the product description. The competitor then demanded cessation by means of an application for an interlocutory injunction.

Court decision

By means of judgment of 05.03.2015 – Az.: I-8 O 10/15 – the Regional Court (LG) Arnsberg ruled in favour of the applicant, as the offer in conjunction with the product image was misleading.

The image visible in the disputed advertisement contained concrete slabs which were not included in the offer price. However, since price is an essential characteristic of goods and relates to the ostensible scope of the goods, there is misleading conduct in trade. In this context, with online sales, one must assume, due to the speed of internet traffic, a rather cursory reading and perusal of the entire offer content. Precisely for this reason, the Federal Court of Justice (BGH) clarified the case law on so-called 'eye-catching advertising' in such a manner that an image serving as an 'eye-catcher' – if the components visible in it are not comprehensively covered by the offer – could have a misleading character.

Conclusion

When illustrating offers on Amazon or other online portals, it is imperative to ensure that the respective offer precisely designates the scope of performance or delivery. If the product image suggests a larger scope of goods than is actually contained in the offer, this must be clarified accordingly in the product description in order to avoid misleading conduct.