Advertising "Nail cosmetics at top prices" unfair?

The Regional Court (LG) Bochum was asked to decide the legal question of whether the online advertisement "nail cosmetics products at top prices" constitutes an anti-competitive exclusive claim, or whether online retailers are permitted to advertise with "top prices".

Both parties operate online shops in which they offer and distribute nail care products on the internet. One of the two parties advertised its goods with the advertising slogan:

"Buy nail cosmetics products around the clock at favourable top prices".

The website of the advertiser is operated under the European top-level domain ".eu". The competitor considered this form of advertising to be anti-competitive, sent a cease-and-desist letter to the advertiser and demanded cessation.

The party sending the cease-and-desist letter was of the opinion that the competitor created the impression with this advertisement, in combination with its European top-level domain, of offering the cheapest prices throughout Europe.

Court decision
The Commercial Chamber of the Regional Court (LG) Bochum decided in itsjudgment of 22.09.2010 – Az. I 13 O 94/10that advertising with "top prices" does not constitute an anti-competitive exclusive claim. The average consumer would recognise this as a common form of advertising praise which does not create the impression of offering the cheapest product on the market. Rather, "top" in general would be understood as "favourable" and not "cheapest".

This was not altered by the fact that the defendant was the holder of a ".eu" domain. Here the consumer would merely see that the defendant operated a corresponding domain. The consumer would not establish any connection between Europe and the "cheapest" price.

Conclusion

An unlawful exclusive claim generally exists only when the advertiser advertises that it is, for example, better, cheaper or faster than all other competitors on the market and this claim is not understood by the consumer as typical advertising exaggeration.

For example, the Court of Appeal Berlin (5 W 175/10) decided in a similar case that the slogan "The best language course of all time" for a foreign language course likewise does not constitute a misleading exclusive claim, but rather only a promotional exaggeration. Ultimately, the boundaries of anti-competitive behaviour are fluid, so that seeking advice from a specialised lawyer is worthwhile.