"Free glasses" – advertising campaign of an optician

Attractive advertising campaigns attract a large number of customers. Often there is only a narrow line between permissible advertising measure and anticompetitive conduct. The advertising of an optician with "1 glass free!" or "free glasses" has now been the subject of proceedings before the Higher Regional Court (OLG) Hamm.

An optician and hearing aid company advertised in a brochure and on the Internet for an offer to purchase a complete pair of glasses, namely a frame and two lenses.

Depicted, amongst other things, was a spectacle frame, with one lens being referred to as "free" and the other lens as "inexpensive". The statement "1 glass free!" was also highlighted. The statement was marked with an asterisk and led to the text "Valid when purchasing a complete pair of glasses with D2 lenses in prescription strength. Not combinable with other offers." Furthermore, the optician advertised with the notice "The D free glass with every pair of glasses!".

The Competition Centre (Wettbewerbszentrale) sees a violation of the prohibition on benefits under the Heilmittelwerbegesetz and misleading conduct within the meaning of competition law. The advertiser optician does not actually gift one of two eyeglass lenses, but rather grants a discount of 50% on both eyeglass lenses.

The Regional Court (LG) Dortmund sided with the Competition Centre. It based its decision on the fact that it was not apparent to the consumer that he would also have to pay half the price for the free lens.

Court decision

The Higher Regional Court (OLG) Hamm (Urteil vom 06.08.2015 – Az. 4 U 137/14) does not share the view of the Competition Centre and the court at first instance.

There is no violation of the prohibition on benefits under the Heilmittelwerbegesetz, since the glasses including the "gifted" lens constitute a single offer that must be paid in full. The consumer addressed would, as a rule, have no interest in an individual eyeglass lens. Rather, the need exists for a complete pair of glasses as a functional unit, consisting of a spectacle frame and two lenses with matching correction values. Merely the statements "free" and "gifted" were not sufficient here to create the impression of a free benefit.

According to the view of the judges in Hamm, there is also no violation of the UWG here. The advertising in dispute adequately informs the consumer that the complete pair of glasses as the main service is subject to payment.

Conclusion

It remains to be seen whether the Federal Court of Justice (BGH) will grant the Competition Centre's petition for lack of jurisdiction and whether the legal question will be clarified by the highest court.