They are not stupid – advertising directed at children

Advertising directed at children does not necessarily exploit their lack of commercial experience and impermissibly encourage them to make a purchase. The Federal Court of Justice (BGH) has now dismissed a corresponding injunction action brought by the Federal Association of Consumer Protection Centres by judgment of 03.04.2014 (I ZR 96/13 – Zeugnisaktion).

An electronics specialist retailer had advertised that it would grant pupils a price reduction of EUR 2.00 for each top grade in their school report. The report-based promotional action was to apply to the entire product range. The Federal Association of Consumer Protection Centres considered this to be advertising directed at children that violated an absolute prohibition contained in the blacklist under § 3 UWG. Prohibited in this regard is

"the direct appeal included in advertising directed at children to purchase the advertised goods themselves or to make use of the advertised service, or to induce their parents or other adults to do so."

According to the wording of the prohibition, the matter appears to be straightforward and the advertising promiseconstitutes unfair competition.

The court's decision

However, the provision requires a sufficient reference to goods. The request must therefore relate to specific products and may not merely be of a general nature relating to the entire range. Otherwise, according to the views of the lower courts, there would in any event be no infringement of the blacklist. Furthermore, it is not apparent that the advertising exerts an inappropriate influence on the freedom of choice of the schoolchildren addressed or exploits their lack of commercial experience and for this reason constitutes unfair competition.

The Federal Court of Justice (BGH) confirmed and reinforced this view in its judgment of 03.04.2014. See also in this regard the Press release of the Federal Court of Justice (BGH) of 03.04.2014.

Conclusion

Advertising deliberately directed at children is therefore not per se unlawful. However, caution is advised. In this area, it depends on the subtleties of the individual case, namely the specific wording, the goods offered, the target group, etc.