Size of a plush toy as a diagonal measurement

Advertising must not contain false statements. Otherwise, it is misleading. Is advertising for a plush toy to be classified as misleading if the size of the plush toy is stated, but the stated length refers to the diagonal marked in the product photograph rather than a measurement from the top of the head to the sole? The Higher Regional Court (OLG) Cologne denies this.

An importer of plush toys advertised teddy bears on the Internet. Teddy bears of various sizes were depicted. The respective size of the plush toys was stated. The information did not relate to the actual standing height of the plush toys, that is, measured from the top of the head to the sole, but rather to a diagonal measurement from the left ear to the right foot. The diagonals were marked in the product images.

A competitor of the importer saw in this an anticompetitive misleading practice. He is of the view that the representation of the sizes is misleading because consumers expect that the offered teddy bears are actually as large as stated. In fact, the plush toys are each around 15% smaller – measured from the top of the head to the sole.

The Regional Court (LG) Cologne had granted the claim. After the defendant importer had filed an appeal, the Higher Regional Court (OLG) Cologne decided in his favour.

The decision of the court

The Higher Regional Court (OLG) Cologne dismissed the claim withJudgment of 06.02.2019 – Az. 6 U 141/18.

The court denied a misleading of the relevant circles of consumers, here the consumers. It is far-fetched to assume that a substantial part of consumers would assume that the stated length refers to the height of the plush toy when placed upright. The realisation that the diagonal is longer than the height requires no mathematical knowledge that goes beyond the fundamental knowledge to be presumed.

In addition, the argument came that even the mathematically untrained consumer would be made aware of the difference by the visual representation in the context of the contested advertising.

Finally, the court named the size of a plush toy as only one of several criteria that played a role in the purchase. For the purchase decision, it was usually far more important whether the plush toy looked "cute".

Conclusion

Advertising must be assessed in the context of its overall impression. What is decisive is the perception of the relevant circles to which the advertising is directed. Here the court is of the view that consumers are aware of the relationship between a diagonal and the height and that this is made clear by the representation. A misleading was denied.