Advertising with 'immediately available' in online retail?

The Regional Court (LG) Aschaffenburg had to decide, at the instigation of the Competition Centre (Wettbewerbszentrale), whether an online retailer may advertise its goods with the addition 'immediately available' if the products advertised in this manner are not held ready for dispatch on the next working day.

An online retailer of electronics advertised its offers with the promise that these were immediately available. However, in two documented cases, the online retailer informed its customers that the products would have to be re-ordered and that there would therefore be delays of up to one week in the delivery of the ordered goods.

The consumers subsequently complained to the Competition Centre (Wettbewerbszentrale), which then issued a cease-and-desist notice against the online retailer. The Competition Centre (Wettbewerbszentrale) demanded that the online retailer cease advertising in its mail-order business by reference to the immediate availability of products if the goods advertised in this manner are not actually held ready for dispatch on the next working day.

The internet retailer did not give a cease-and-desist undertaking and allowed the matter to proceed to court proceedings.

Decision of the court

Following the press release of the Competition Centre (Wettbewerbszentrale), the online retailer recognised the cessation claim asserted against it with an acknowledgement judgment of the Regional Court (LG) Aschaffenburg of 19.08.2014 (Az. 2 HK O 14/14) in full and allowed itself to be ordered to cease advertising in its mail-order business by reference to the immediate availability of products if the goods advertised in this manner are not actually held ready for dispatch on the next working day.

During the oral hearing, the court pointed out to the internet retailer that it considered a reference to the immediate availability of products which cannot actually be delivered to be misleading and that it would therefore grant the claim.

The online retailer then declared that it recognised the claims asserted against it.

Conclusion

Advertising with 'immediately available' is only permissible if the dispatch of the advertised goods can take place on the next working day. If this is not possible, advertising with the addition is not permitted, as this would otherwise constitute misleading advertising in breach of competition law.