Dispute over an "Extra Issue"

Is advertising with the designation "Extra Issue" for a recipe collection enclosed with the magazine misleading? Does the relevant class of persons expect to receive an additional independent issue with its own pagination, its own editorial content, and a masthead when purchasing the magazine? The Higher Regional Court (OLG) Hamburg says no.

A magazine publisher, which publishes, among other titles, the magazine "FREIZEIT TOTAL", released an issue of this series in August 2015. In the centre of the issue was an eight-page recipe collection which had neither its own page numbering nor a masthead. The supplement had a larger format than the magazine. On the protruding margin of the recipe collection, it said "New Extra Issue Free Favourite Recipes for Grilling Fun!"

Another magazine publisher viewed this as unfair competition through misleading advertising, as the relevant class of persons would assume that it was a second independent issue with its own editorial content. In reality, however, it was merely a part of the magazine "FREIZEIT TOTAL". Moreover, the designation was misleading because the relevant class of persons received nothing "extra". The "Recipes" section had already been a regular feature of the magazine previously.

The publisher of "FREIZEIT TOTAL", on the other hand, takes the view that the relevant class of persons immediately recognises the character of the "Extra Issue" and expects a detachable insert that does not belong to the usual content of each issue of the magazine "FREIZEIT TOTAL". This is the case, because it receives in addition a detachable collection of recipes that does not belong to every issue. Misleading advertising is therefore ruled out.

The Regional Court (LG) Hamburg sided with the claimant publisher and confirmed that the designation "Extra Issue" was misleading. The defendant publisher appealed against this judgment.

The court's decision on Extra Issue

The Higher Regional Court (OLG) Hamburg did not follow the court of first instance but ruled out misleading advertising by judgment of 29.03.2018 – Az. 3 U 268/16 misleading advertising.

According to the court, misleading advertising is precluded in particular by the fact that the "Extra Issue" is expressly stated to contain grilling recipes. However, it does not follow from this that it is an independent magazine – including its own editorial content, independent pagination, and its own masthead.

Furthermore, the relevant class of persons actually receives something "extra", i.e. in addition. Although the magazine "FREIZEIT TOTAL" regularly contains a Recipes section, it is not evident that the additional recipes contained in the "Extra Issue" were also a regular part of the magazine's scope.

Conclusion

The designation "Extra Issue" is not misleading if it is merely a supplement to a magazine containing something that is not part of the magazine's usual content. The relevant class of persons does not understand this to mean a second independent issue.