Asterisk notice unfair?

In advertising with price reductions, special campaigns and vouchers, asterisk notices can refer to conditions that usually restrict the offer. The Regional Court (LG) Freiburg had to decide on the unfair competition nature of advertising in which an asterisk notice was indeed present, but the consumer first had to search for the corresponding footnote.

The subject matter of the dispute concerns unfair competition law claims for injunctive relief by a competition association, which objected to the print advertising of a retailer. This advertiser had promoted in the form of a flap, which was placed as an advertising wrapper around the outside of the front page of a daily newspaper. The association objected that the advertising campaign

"19% VAT as a gift*"

did indeed contain an asterisk notice, but this notice was not resolved on the same page, but rather on the back of the two-page advertising wrapper.

The retailer considered his advertising to be lawful and did not issue a declaration of cessation. A careful consumer would notice the asterisk notice in the eye-catching advertisement and would then also perceive the resolution of the footnote, even if it were not placed on the same page as the advertisement.

Court decision

The Regional Court (LG) Freiburg decided by judgment of 23.02.2015 – Az. 12 O 105/14, that an asterisk notice must be resolved on the same page.

In particular, anyone acts unfairly and thus in violation of unfair competition law who does not state clearly and unambiguously the conditions for claiming sales promotion measures such as price reductions, gifts or gratuities. This was not the case here.

Furthermore, there were also no reasons inherent to the medium for not resolving the asterisk notice on the same page, so that there is no exception either.

Conclusion

The average consumer assumes that footnotes and notices are located on the same page. It cannot be expected that consumers must first search for the conditions.