"Lasts up to 12 months"

Is the advertising claim "Lasts up to 12 months" for a liquid display protection product for smartphones misleading? The Regional Court (LG) Hagen has prohibited such an advertising claim.

Hands of a businesswoman using a smartphone

A mail-order company sells a liquid display protection product in its online shop. The product was also presented in the television programme 'Die Höhle der Löwen'. The display protection is suitable, for example, for smartphone screens. The advertising claim 'Lasts up to 12 months' made for this product was challenged as anti-competitive.

The association sending a cease-and-desist letter to the mail-order company is of the opinion that the statement 'Lasts up to 12 months' is not justified by any substantive study and is therefore misleading.

The mail-order company, by contrast, takes the view that the increased protection against breakage and scratches achieved by the product actually lasts up to 12 months. Furthermore, the wording 'up to' makes it clear to consumers that the display protection does not last 12 months in every case, but that the durability depends on the respective usage load.

After the cease-and-desist letter recipient refused to issue a declaration under penalty, the association applied for the issuance of a preliminary injunction.

The court's decision on display protection

By judgment of 26.10.2017 – Az. 21 O 90/17 the mail-order company was prohibited from advertising the display protection product with the statement "Lasts up to 12 months".

The Regional Court (LG) Hagen affirmed a misleading practice and based its decision on the ground that the statement "Lasts up to 12 months" was meaningless for the consumer addressed. For the purchaser, it was not foreseeable whether the seller would be willing to assume liability for a display scratch occurring 6 months after the application of the display protector. With respect to the question of warranty liability, proof difficulties would arise for the consumer, for example if it were to turn on what durability could be expected given the specific use of the buyer.

Conclusion

Warranty representations are only permissible under competition law if they are factually accurate and are not meaningless to the potential customer.