Is advertising with "limited quantity" permissible?

Is advertising for goods "only available in limited quantity" impermissible and thus anticompetitive if the stock of advertised products is so low that the consumer has scarcely any chance of purchasing the offered goods? The Higher Regional Court (OLG) Koblenz now had to decide on this question of unfair competition law.

An entrepreneur advertised vacuum cleaners in various advertisements in daily newspapers and on the internet with the note "only available in limited quantity". The offer was to be available for purchase both in the individual branches of the entrepreneur and on the internet. In fact, the advertised vacuum cleaners sold out on the internet within minutes. In the branches of the entrepreneur, the goods advertised in limited quantity were sold out within two hours.

A competitor of the entrepreneur considered this to be misleading and demanded that the entrepreneur cease the advertising in print advertisements and in the context of advertising on the internet.

The Regional Court (LG) dismissed the application for an injunction, so the competitor appealed to the OLG Koblenz.

Court decision

By means ofjudgment of 02.12.2015, Az. 9 U 296/15, the Higher Regional Court (OLG) Koblenzpartly reversed the decision of the first instance regarding advertising with the note "only available in limited quantity".

The court decided that the competitor had claims for an injunction to the extent that the vacuum cleaners were advertised for the online shop, since the company had not drawn the public's attention in the objectionable advertising to the fact that the stock of goods would in all likelihood not be sufficient to satisfy demand. This constituted a misleading of the consumer which was not eliminated by the empty statement "only available in limited quantity".

To the extent that the defendant had advertised for the purchase of the vacuum cleaners in dispute in its branches, the claim for an injunction was unfounded. The entrepreneur was able to refute insufficient stock in that regard. The company was able to demonstrate that in previous similar promotional campaigns the advertised domestic appliance had only been in demand to a modest or low degree.

Conclusion

When advertising goods available in limited quantity, the entrepreneur must stock sufficient goods to give the consumer a realistic chance to purchase the offered goods within a short reaction time after normal notification of the advertising. In case of doubt, the entrepreneur must prove that an adequate stock was held.