Advertising with "generally" equivalent to "always"?

A competitive association considered an insurance company's statement to be misleading advertising, which promised motor vehicle comprehensive insurance policyholders that in the event of gross negligence it would "generally" pay 85% of the costs. In reality, however, this quota was not paid without exception. The Higher Regional Court (OLG) of Bamberg had to decide in second instance whether "generally" would be understood by the relevant public as "always".

An association for the promotion of commercial or self-employed professional interests asserted competitive law claims for cessation and sought recovery of cease-and-desist letter costs. The competitive association objected to the following advertising:

"What applies if you have the vehicle repaired at another workshop?

If you have agreed K. with us and have your vehicle repaired at another workshop not selected by us, we can reduce or refuse our benefit – depending on the degree of fault:
– In the event of gross negligence, we generally pay 85% (excluding transport costs)
– If you prove that you did not act with gross negligence, we pay the full amount (excluding transport costs)

Further information can be found in the insurance policy conditions."

However, the insurance company reserved the right in the referenced insurance policy conditions to make a deduction of more than 15% in the event of gross negligence. The competitive association classified this as misleading advertising, since the relevant public would assume from this advertising with the phrase "generally" that the insurance would always cover 85% of the damage even at a non-recommended workshop.

Decision of the Court

By judgment of 23.09.2015 – Az. 3 U 77/15 – the Higher Regional Court (OLG) of Bamberg did not follow this view and rejected a finding of misleading advertising. The disputed advertising statement by the insurance company would not deceive the relevant public regarding an essential characteristic of the service.

In this regard, it was already questionable whether the word "generally" was equivalent to "without exception", "always" or "with no exceptions". The introductory sentence of the advertising statement clearly and unmistakably indicated that the insurance benefit could be reduced or refused depending on the degree of fault when selecting the workshop. If one understood the term "generally" in the following sentence to mean "always", the reference to the possibility of a reduction according to the degree of fault would be pointless. The reasonably informed consumer would understand the statement "In the event of gross negligence, we generally pay 85%" in light of the preceding reference to mean that there could also be exceptions to the principle presented.

Furthermore, there was a lack of relevance of the misleading statement, even if the relevant public understood it differently. This is because the insurance company promised more in the advertising than its statutory performance obligation. However, such misleading information to the detriment of the advertising party is not relevant under competition law and therefore does not constitute a violation of competition law.

Conclusion

The OLG Bamberg translates "generally" here as "as a rule". This can only be concluded from the overall context of the advertising text here. Corresponding formulations should therefore be used with caution, as they can give rise to misconceptions among the relevant public and may result in cease-and-desist letters for misleading advertising.