The Legal 500

Twitter Logo Youtube Circle Icon LinkedIn Icon

GRP Rainer LLP

AUGUSTINERSTRAßE 10, 50667 COLOGNE, GERMANY
Tel:
Work +49 221 272 27 50
Fax:
Fax +49 221 272 27 52 4
Email:
Web:
www.grprainer.com
Berlin, Bonn, Cologne, Dusseldorf, Frankfurt, Hamburg and 3 more

Show all Press releases

OLG Hamburg on misleading advertising – No fees means no fees

June 2017

If something is promoted as being free, then it should in fact be free. Otherwise, this kind of advertising might be misleading and violate competition law, as demonstrated by a ruling of the Oberlandesgericht (OLG) Hamburg [Higher Regional Court of Hamburg].

A bank had made an offer that sounded tempting, advertising that no cash withdrawal fees would be incurred when withdrawing money anywhere in the world with its credit card. The bank advertised in promotional letters that no withdrawal fees would be incurred for withdrawing money from any cash machine either at home or abroad, i.e. “0 cash withdrawal fees worldwide”. However, the offer had a catch: there was a charge for using the card outside of the Eurozone, with this only being explained on the back of the promotional letter.

The Bundesverband der Verbraucherzentralen, Federation of German Consumer Organisations, (VZBV) considered this kind of advertising misleading and requested an injunction. The Hanseatische Oberlandesgericht Hamburg [Hanseatic Higher Regional Court of Hamburg] ruled in favour of the consumer watchdog in its judgment of April 12, 2017 (Az.: 5 U 38/14). The OLG held that provisions pertaining to the incursion of fees and the extent of any charges for withdrawing cash at home and abroad were of central importance to consumers and thus an essential feature of the service. It went on to say that consumers would assume with this kind of promotional letter that no fee would be incurred at home or abroad when withdrawing with the credit card in question. Moreover, consumers would not typically make a distinction here between a cash withdrawal fee and a fee for using the card abroad. Instead, they would assume that no charges would be incurred when withdrawing cash anywhere in the world.

The Court ruled that the explanation on the back of the promotional letter stating that a fee would be incurred for using the card abroad when withdrawing outside of the Eurozone did not suffice to clear up this misdirection. To this end, it was said that a clear notice ought to have been included on the front regarding charges for using the card abroad. The Court also noted that the misleading information was liable to induce consumers to take a transactional decision that they would not have taken otherwise.

Violations of competition law may be met with severe penalties. GRP Rainer Rechtsanwälte notes that these can lead to injunction suits and damages claims. To avoid these outcomes, lawyers who are versed in the field of industrial property rights can advise on issues relating to competition law as well as assist in enforcing or fending off claims.

https://www.grprainer.com/en/legal-advice/intellectual-property-law-and-trademark-law/advertising.html

Legal Developments by:
GRP Rainer LLP

Legal Developments in Germany

Legal Developments and updates from the leading lawyers in each jurisdiction. To contribute, send an email request to
  • LAG Düsseldorf: Dismissal with immediate effect valid in response to threat

    Anyone who seriously threatens their employer or superior should expect to be dismissed with immediate effect. This was confirmed by a ruling of the Landesarbeitsgericht (LAG) Düsseldorf [Regional Labour Court of Düsseldorf] from June 8, 2017 (Az.: 11 Sa 823/16).
  • Tax evasion: Only voluntary disclosure affords protection from severe penalties

    Anyone who has been caught for tax evasion should expect to be faced with severe penalties. Voluntary disclosure is the only way of returning to a state of normal tax affairs and avoiding penalties.
  • GSK Update: AIFM Marketing in Germany - The clock is ticking for U.S. and other non-EU fund managers

    Our GSK Update informs about the impact of recent German investment fund legislation (UCITS V Implementation Act) for AIF managers, who are not domiciled in the EU (“non-EU-AIFM”) and who seek to market AIF shares in Germany in accordance with applicable German investment fund law under the EU-AIFM Directive (2011/61/EU).
  • GSK expands Luxembourg presence with a new tax partner

    Opened at the beginning of March 2016, GSK Stockmann + Kollegen continues to expand its Luxembourg office. Mathilde Ostertag recently joined the Luxembourg team of Equity Partners Dr. Marcus Peter, Andreas Heinzmann and Dr. Philipp Mößner as Local Tax Partner.
  • EIA - Strengthening the role of the public

    Among other things, the recent amendment to the Environmental Impact Assessment Act has broadened the rights of (what is termed) the "affected public". The affected public consists primarily of various citizens' initiatives pursuing environmental or public-health purposes. It may for instance file an appeal against a negative decision at the screening stage (i.e., a decision according to which the given project does not require the issuance of an EIA report), and seek its annulment in court. The affected public has been granted a stronger voice also in subsequent procedures in which the fate of a building project is being decided: zoning proceedings and the proceedings on the issuance of a building permit. Taken together, these legislative changes may make it more difficult to implement projects which require an EIA report; in particular, the length of permission proceedings may be substantially extended.
  • New Top Level Domains – Noerr expert warns against trademark infringements

    On June 13, the Internet Corporation for Assigned Names and Numbers (ICANN) published the names of those who have applied for a new top level domain the ending of which may be geographic, such as "munich", industry identification such as "insurance" and even all trademark names and company descriptions such as "canon" and "adidas".
    - Noerr
  • No obligation to set up filtering systems in order to prevent copyright violations

    ECJ, decision of February 16th, 2012, ref. C-360/10 – SABAM
  • Further ECJ Ruling concerning NGO’s right of action under German environmental law

    For the second time within a short period of time, the non-governmental organisations right to challenge administrative decisions under German law is going to be subject to the jurisdiction of the European Court of Justice (ECJ). In January 2012, the German Supreme Administrative Court (Bundesverwaltungsgericht) referred a case to the ECJ for a preliminary ruling concerning the NGO’s right of action.
  • Lessons in Cross-Border M & A Transactions

    The fundamental advice for international business transactions is obvious and easy to understand: different countries have different laws, business habits and cultures. These differences may range from minor nuances, such as lengthy French business lunches or unusual Spanish office hours, to significant legal roadblocks, such as strict European employment laws.
  • Priority rental rights in insolvency

    Parties to rental contracts for commercial premises often agree priority rental rights. In practice, this concept is used to cover a whole series of legal structures. These range from fixed options for the tenant to a promise made by the landlord as a business policy that if any additional premises become available, they will be offered to the tenant. In 2010 the Berlin Court of Appeal issued a ruling on such priority rental rights in insolvency; the decision has recently been published.