OLG Hamm: Advertising must include all information that is material to consumers

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Consumers must not be deprived of information material to their decision whether or not to make a purchase. This constitutes a breach of competition law, as demonstrated by a ruling of the Oberlandesgericht (OLG) Hamm, the Higher Regional Court of Hamm.

In order for consumers to be able to make an informed transactional decision, they must be provided with all information regarding the product’s essential characteristics that is essential to their decision whether or not to make a purchase. We at the commercial law firm MTR Rechtsanwälte note that if this information is withheld from them, this constitutes a breach of Germany’s Unfair Competition Act (Gesetz gegen den unlauteren Wettbewerb (UWG)).

According to a ruling of the OLG Hamm from March 7, 2019, these essential characteristics may also include specifying the relevant model (Az.: 4 U 120/18).

In the instant case, a furniture dealer had promoted a bedroom featuring a bed, closet, chests of drawers, etc., from a specific manufacturer at a permanently low price. The manufacturer offers a wider variety of different bedrooms. However, there was no reference to the exact model in the advertisement. Details about the model were only to be found on the website. It then became clear from this information that competitors were offering the bedroom in question at a cheaper price.

For this reason, a competition association decided to sue for an injunction against the furniture dealer, arguing that the lack of details about the model meant that material information was being withheld from consumers. It further noted that it is only clear from the model name which product is actually being advertised.

The OLG Hamm granted the legal action, stating that those who withhold material information from consumers that they require in order to decide whether or not to make a purchase are acting unfairly. If goods are offered with reference to their characteristics and price in such a way that consumers are able to conclude the transaction, information concerning all the characteristics of the good are considered to be material if they are not already apparent from the context.

The OLG Hamm held that material information includes details about the bedroom’s model. These details were said to be necessary for consumers to be able to compare prices and products. The OLG Hamm went on to state that not specifying the model at the very least makes this comparison more difficult.

Breaches of competition law may give rise to formal warnings, injunction suits, and damages claims. Lawyers with experience in the field of competition law can offer advice.


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