No closure – No 'reopening'

Is a previous closure of the business necessary for advertising with the term 'reopening', or are major renovation measures sufficient to be able to speak of a 'reopening'? The Higher Regional Court (OLG) Hamm found misleading competitive conduct if the business had not previously been closed.

A furniture store carried out renovation measures at one of its branches in several stages in 2015 and 2016. The branch remained open throughout the renovation measures. After completion of the renovation work, the furniture store advertised with the following statements:

'We are celebrating the reopening of our furnishing centre in I. After complete renovation and major expansion. Enjoy the new dimension of living with gigantic branded furniture offers. The new X-furnishing centre in I. Now grand reopening. The celebration continues.'

A competitor of the furniture store saw misleading competitive conduct in the advertising. In his view, the term 'reopening' conceptually presupposes a closure, which had not taken place.

The advertising furniture store did not share this view and contends that the advertising is not open to objection. The use of the term 'reopening' does not require that the business had been completely closed in between. The furniture store had been completely reworked in its substance, partially demolished, partially reconstructed and expanded. The term 'reopening' merely serves to express that something new is being opened. This was precisely the case. The completed furniture centre was made accessible to the public for the first time. In all departments, significantly expanded product ranges were presented.

The court's decision

The OLG Hamm confirmed the judgment of the LG Bochum and thus found misleading competitive conduct with its judgment of 21.03.2017 – Az. 4 U 183/16.

The judges in Hamm are of the opinion that the term 'reopening' suggests the impression of a reopening of the shopping centre. The occasion for the sale was, however, the final completion of all expansion and renovation work on the building.

The term 'opening' is not understood differently than in the sense of opening up or opening of the retail premises and presupposes conceptually that it had been closed.

The addition 'After complete renovation and major expansion' does not correct this impression. From this, it may be inferred at most that it is not a new opening. However, it is not made clear that there was no closure.

Conclusion

The consumer is misled regarding the occasion for the sale if advertising is conducted using the term 'reopening' even though the business had not previously been closed.