Consumer enlightenment through mouseover effect?

The Higher Regional Court (OLG) Frankfurt a.M. had to decide whether the operator of an online shop could clarify a misleading advertising statement on its homepage by offering an explanation of the advertisement which the consumer recognizes when directing his cursor to a specific field on the website.

The operator of an online shop had previously been judicially prohibited, at the request of a competitor, from using the unique selling proposition on its homepage

"We beat any price"

for the sale of watches. A jeweller competing with the shop operator, who had previously obtained a court order against the shop operator, now discovered that the latter was once again using the disputed slogan in its online trading. The competitor thereupon applied to the competing online merchant to impose a penalty payment for the renewed breach of the order issued against it. The Regional Court (LG) Frankfurt a.M. thereupon set a penalty payment in the amount of €2,000.00 against the operator of the online shop.

The latter defended itself against the penalty payment with an appeal to the OLG Frankfurt a.M.. The online merchant argued that it had displayed the following clarifying note by means of a mouseover effect:

"Should you find an identical article from any other German jeweller at the same time at a lower price, you will receive this price from us plus 1% discount."

In his view, he had not violated competition law provisions through this explanation. Moreover, it was not a substantially identical breach, so that a renewed warning should have been issued had there been a breach of competition law.

Court decision
The Higher Regional Court (OLG) Frankfurt a.M. dismissed the appeal of the online merchant on 23.02.2011 –Az. 6 W 111/10 dismissed it.

If an injunction is directed against an isolated statement criticised as misleading, a breach of this order will as a rule not be found if the statement is supplemented with an addition understood as an attempt to clarify. However, this does not apply if this addition is in such a hidden form that it is practically not perceived by the addressee of the advertisement. This was the case here. The clarification effected here by means of the mouseover effect is only perceived by the consumer if he directs his cursor to the corresponding field. Therefore, it cannot be assumed that the average visitor to the warned-off homepage would perceive this text at all.

The repetition of the unfair advertising statement with insufficient clarification constituted a substantially identical breach, so that the application for a penalty payment was not objectionable.

Summary

An unfair advertising statement standing on its own can be clarified and thus made fair through an explanatory addition. It must always be borne in mind, however, that this clarification is made sufficiently clear. The Higher Regional Court (OLG) Frankfurt a.M. has in any case given a clear rejection to an explanation by means of the mouseover effect.