Breach of competition law through notification card?

The Higher Regional Court (OLG) Hamm had to decide whether it constitutes unfair competition law misleading conduct when a real estate company, in connection with sending advertising material, requests a callback on a notification card concerning the shipment, but then by telephone also at least inquires about an interest in real estate business.

The occasion for the competition law dispute between two real estate firms was a card modelled on a DHL notification card that had been placed in a consumer's letterbox. The contents of the "missed" shipment were not disclosed beyond the indication "Info-Post heavy". The card contained a telephone number and the instruction: "Please call us!". When the consumer called to inquire about their postal item, they were not only informed about the delivery of an information package, but were immediately also asked about an interest in the real estate business offered by the advertiser. In addition, the advertiser attempted to arrange a personal consultation meeting in the course of this telephone call.

A competitor of the real estate dealer challenged this practice on grounds of the transparency requirement and the prohibition against misleading conduct in a cease and desist letter under competition law and demanded that the competitor cease this practice.

Court decision
The 4th Civil Senate of the Higher Regional Court (OLG) Hamm decided in itsjudgment of 19.08.2010 – Az. I-4 U 66/10that unfair competition law misleading conduct of the relevant market is present when the advertising nature of an allegedly missed shipment is not disclosed on a notification card.

According to the court's view, deception is present when the insertion of a card "Notification - Package Delivery" suggests to the recipient that a parcel service company was unable to deliver a shipment to them, but in reality only advertising material from a company is being distributed, with the intention of prompting the consumer to make a response to an advertising call. The recipient of the disputed card is ultimately forced to call the stated number because they may fear missing what could be an important shipment.

Conclusion

This case demonstrates once again that "creative" advertising measures often move along the borderline of what is permissible under competition law. A prior review by a specialist is regularly advisable in such cases.