Misleading advertising only if advertising prominence?

The Federal Court of Justice (BGH) had to decide the legal question whether advertising with commonplaces can also be misleading and thus anticompetitive if such commonplace was not highlighted in particular in the advertising.

Anonline retailerfor printer and computer accessories advertised on the Internet inter alia with a "money-back guarantee" with the following information:

"1. Should you not be satisfied with a compatible product, you have a 14-day money-back guarantee. We will cover the postage costs for the return.

2. For all products, the statutory warranty of 2 years naturally applies as well.

3. The shipping of the goods is at the risk of P(...)"

A competitor in competition with the online retailer, after unsuccessfulcease-and-desist letterbrought legal proceedings against the competitor and requested cessation of the above advertising, since this represented statutory consumer rights as a special feature.

Court decision

The Federal Court of Justice (BGH) decided byjudgment of 19.03.2014 – Az. I ZR 185/12that anticompetitive advertising with commonplaces does not require a highlighted presentation of the alleged special feature of the offer. It is anticompetitive if the incorrect impression is created in the consumer that the trader distinguishes itself in its offer by granting the consumer a right which the consumer would have anyway. Therefore, the above-described advertising statements Nos. 1. and 3. were misleading.

However, this does not apply to the statement presented in No. 2. Namely, the trader could eliminate theanticompetitive natureif he made clear to the addressed consumer
that no rights are being granted to him which do not
already accrue to him by virtue of law. The online retailer had done this by expressly stating that the two-year guarantee was a statutory one.

Conclusion

The decision of the BGH is comprehensible. It can make no difference whether the advertising with commonplaces is highlighted in the advertising or is brought to the consumer's attention in some other way. Conversely, it must be permissible to point out a statutory warranty.