Is listing goods under a false search category unlawful?

In the present case, the judges in Karlsruhe had to decide whether listing goods on internet trading platforms under false search categories is misleading and thus contrary to competition law.

The parties deal in used cars, which they also distribute via an internet platform. The used vehicles can be listed by the seller under various search categories. On the trading platform, buyers specify various criteria in order to be shown corresponding vehicles. The used car dealer advertised a vehicle on the internet platform in the category "up to 5,000 km" with the following bold heading:

"BMW 320 d Tou.* Total km 112,970** ATM- 1,260 km**"

The competitor of the seller considered the listing of a vehicle under the search category "up to 5,000 km" to be misleading and issued a cease-and-desist notice on a cost basis. The seller did not provide an undertaking to cease and desist and chose to proceed to court proceedings. However, both lower courts ruled in favour of the competitor and ordered the used car dealer to cease and desist.

Court decision

The Federal Court of Justice (BGH) in Karlsruhe dismissed the action on the basis of the used car dealer's appeal byjudgment dated 6.10.2011 ­ Az. I ZR 42/10.

Although the listing of the vehicle in the incorrect category did contain a false statement regarding the mileage, in the concrete case the incorrect categorisation was not capable of misleading the trade, since the correct mileage of the vehicle was apparent from the heading of the advertisement without further ado. Accordingly, misleading consumers was to be ruled out.

Conclusion

The question of whether listing in an incorrect search category constitutes deception, if no clarification is provided in the heading, was not the subject matter of the dispute. However, in such cases we proceed on the assumption that such business practices are contrary to competition law, so that caution is warranted here.