Is stored goods the same as new goods?

Is a merchant permitted to advertise five-year-old unused and originally packaged goods as "new" or "new goods"? The Higher Regional Court had to assess this question as an automotive dealer offered ball bearings that were several years old as "new goods".

An automotive dealer specializing in the distribution of spare parts offered ball bearings for sale on the internet auction platform ebay and designated the condition of the spare parts as "New". The goods were unused and originally packaged products which the automotive dealer had kept in stock for many years.

An association for the promotion of commercial interests then sent a cost-bearing warning to the merchant and sought to cease what it considered to be misleading advertising. From the perspective of the competition association, potential buyers were being deceived by the advertising of the automotive dealer.

Court decision

The Higher Regional Court (OLG) Saarbrücken has, with judgment of 02.04.2015 – Az. 1 U 11/13 – decided that automotive dealers must not advertise ball bearings that are several years old as "new". This applies even if the advertised goods are unused goods.

When determining whether a ball bearing may still be designated as "new", it cannot be based solely on the date of manufacture. However, given the long storage period of the ball bearings sold here, impairment of fitness for use cannot be ruled out, as they are technically sensitive automotive spare parts.

By advertising the stored goods as "new", a misleading of the market therefore occurs, which the merchant must cease.

Conclusion

The principles of this decision can also be applied to other goods. As "new goods", a wear part may therefore only be regarded as such if it has not already been in use, is still manufactured in the same technical design, and has not suffered damage as a result of the intermediate storage, meaning the product can be used like "new" despite the storage period.