Even if it’s true: Advertising products as ‘original’ is not permitted

Arno Lampmann

The Regional Court of Frankfurt once again ruled in favour of a software vendor and its managing director in a decision dated 18 April 2018 (LG Frankfurt, Beschluss v. 18.4.2018, Az. 3-06 O 33/18) advertising with self-evident facts is prohibited.

The dealer had ‘used’ software on eBay with the heading

‘Microsoft Office 2016 2013 Professional Plus ORIGINAL MS Pro Key 1PC ’

advertised. In the event of non-compliance, a fine of up to € 250,000 or up to six months’ imprisonment may be imposed. The amount in dispute was set at € 35,000.

The decision has been issued as an order without reasons and is not yet legally binding.

The Frankfurt Regional Court followed the applicant’s argumentation in the petition that this was unauthorised advertising with self-evident facts and thus an infringement of competition law

The advertising of self-evident facts cannot be eradicated, especially on the well-known sales platforms. The courts have had to deal with this time and again for years. Until a few years ago, the Regional Court of Cologne and the Higher Regional Court of Hamm were of a different opinion. It was not until 2012 that the Regional Court of Frankfurt took pity and put an end to the ‘guarantee mania’:

Frankfurt Regional Court: Guarantee of authenticity in internet offers is unauthorised advertising with self-evident facts

Since then, a number of similar decisions have been issued:

Advertising with self-evident facts – what is that?

Advertising with self-evident facts is a special type of misleading advertising under competition law. The special thing about it is that it is basically advertising with true facts. Such advertising is – of course – generally not objectionable.

This is different if the target public assumes that the advertising actually emphasises an advantage over other products of the same type or the offers of competitors. This is particularly the case if the public is not aware that the emphasised feature is a statutory requirement or a characteristic of the product.

By way of exception, the communication of accurate, true circumstances is therefore not permitted if the consumer gains the impression that they are being offered something special. In a recent decision, the German Federal Court of Justice clarified that it is not necessary to emphasise the fact in order to assume misleading advertising with self-evident facts (BGH, Urteil v. 19. März 2014, Az. I ZR 185/12). We reported.

What is wrong with the reference ‘ORIGINAL’?

It simply goes without saying that the goods offered must be ‘original’. The defendants emphasised this self-evident fact at several points in their offer as something special. The public thus assumes that the goods have an advantage over other goods of the same type or competing offers, whereas in reality these are characteristics that do not distinguish the advertiser’s product from others, as otherwise it would not be marketable anyway and its offer would therefore be unlawful.

If this type of advertising were permitted, there would be a risk of a veritable race for the most law-abiding or ‘guaranteed genuine’ product. Retailers who did not exclude every possible problem with the purchased item in a publicity-effective manner would raise doubts among buyers about the legality of their offers. Every branded T-shirt would then be ‘guaranteed not to be a counterfeit’, valuable watches would always be ‘100% genuine’ and jewellery ‘not counterfeit’ and ‘of course not made of fool’s gold’. Retailers could also come up with the idea that they are certainly not fraudsters either and that customers are ‘guaranteed’ to receive the goods despite paying in advance.

The addition ‘of course’ does not help, of course

Some retailers try to circumvent the ban by adding ‘of course’ and then write sentences like

‘It goes without saying that all our products are original.’

However, this does not usually work as the consumer will not attribute the ‘self-evident’ advantages of the product in a specific advert to the product category in general, but specifically to the products offered by the defendants. However, this would again give the incorrect impression of a preference for their own product over that of other retailers.

The defendant had itself attracted attention through warnings

Finally, it is interesting to note that the respondent – which operates on the market to a very manageable extent – had attracted the applicant’s attention in the first place by sending warnings for allegedly incorrect design of the legal notice and the cancellation policy and because of the notoriously incorrect provision of the link to the infamous ODR platform, i.e. it had written to competitors for alleged legal violations and demanded cease-and-desist declarations and payments, while it did not comply with competition law regulations itself.

Disclosure: Our law firm represented the applicant.