Misleading advertising

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The misleading advertising - or more precisely: misleading commercial act - is an act of fairness law , which is covered by § 5 and § 5a as well as No. 1–24 of the appendix to the law against unfair competition .

Overview

Today's Sections 5 and 5a UWG are essentially based on Directive 2005/29 / EC (PDF) (Directive on Unfair Business Practices - UGP-RL). Whereas in the past only misleading advertising was recorded, the prohibition now extends to all misleading commercial activities ( Section 2 (1) No. 1 UWG). Also is consumer protection is no longer merely a reflex of the original on competitors protection targeting law but leitmotif of the new regulation.

Offense

The advertising measure complained of must be a business act (see above). It must also contain untrue or other information suitable for deception, such as in slamming . A statement is an assertion that can be verified in terms of content, i.e. statements that are accessible to evidence . They are to be distinguished from mere value judgments (which can, however, contain a core of facts that can definitely be qualified as an indication) and so-called meaningless promotions, i.e. advertising statements that convey nothing of the content (“Die and no other!”). An indication can take many forms. Pictorial representations (such as a representation of a scanner model other than the advertised one) are also information.

To assess whether a statement is misleading i. S. d. Is norm, must be based on the recipient horizon. It is not linked to the objective truth, but to what the addressed traffic understands. Objectively correct information can be misleading and objectively incorrect information is entirely permissible.

The misleading must have business relevance, i.e. induce the average consumer actually or likely to make a business decision that he would not otherwise have made. This unwritten factual feature results from a guideline-compliant interpretation based on Art. 6 Para. 1 of the UGP-RL. However, the case law accepts this requirement very generously.

According to the interpretation of the European Court of Justice , misleading advertising (Directive 84/450 / EEC) must be measured against an "average consumer who is well informed, attentive and discreet." As will be further explained, this should also be based on "the relevant circumstances of the individual case".

By omission

Misleading can also be committed by omitting information, provided there is an obligation to provide information ( Section 5a UWG). In its second paragraph, the provision also assumes a series of commercial activities that consist in withholding certain information from the consumer, also the fact of being misled by omission, although in these cases it is not necessary for the consumer to be misled at all.

Misleading Comparative Advertising

Section 5 (3) UWG makes it clear that misleading information in the context of comparative advertising also meets the requirements. Accordingly, these are only covered by §§ 5, 5a UWG and not by § 6 .

Other facts of misleading advertising

In German food law , according to Section 11 of the Foodstuffs and Commodities Act, in addition to the ban on misleading advertising, there is a ban on placing food on the market with misleading names, claims or presentations. Section 3 HWG prohibits misleading in connection with medicinal products (drugs, medical devices, procedures, treatments, objects or other means), Section 27 LFGB prohibits misleading with cosmetics and Section 33 LFGB with other consumer goods. There are also a number of other laws that prohibit misleading. Violations of the deception offenses outside of the law against unfair competition (UWG) are regularly anti-competitive as violations of a market behavior rule according to § 4 No. 11 UWG.

Examples

food industry

Particularly in hotly contested sub-markets such as those of children's products , many disguising and misleading statements are advertised, since it is about future customer loyalty . Such advertising is repeatedly targeted by consumer protection organizations . In 2015, the ECJ prohibited the company Teekanne from advertising raspberry and vanilla in one of its teas by stating the ingredients that were actually not present. A final judgment against a claim by Ehrmann AG regarding the health of one of their children's products is still pending. In 2011, the product Milch-Schnitte from Ferrero was awarded the “ Golden Cream Puff ” by foodwatch for the most brazen misleading advertising. The aim was to give the candy a sporty nimbus in advertising despite its high sugar and fat content.

See also

Individual evidence

  1. ↑ Köhler / Bornkamm, UWG. 32 ed. § 5 marginal no. 2.43.
  2. ^ BGH, judgment of December 20, 2001 - I ZR 215/98 - GRUR 2002, 715 - Scanner-Werbung
  3. ↑ Köhler / Bornkamm, UWG. 32 ed. § 5 marginal no. 2.69.
  4. ↑ Established case law. See only BGH, judgment of March 7, 1973 - I ZR 24/72 - GRUR 1973, 481 - Weingeist: Keyword-like emphasis on the word "Weingeist" on a "Boonekamp" label.
  5. ^ BGH, judgment of January 28, 1957 - I ZR 88/55 - GRUR 1957, 285 - First Kulmbacher.
  6. ↑ Harte / Henning / Dreyer, § 5 B marginal no. 155 ff.
  7. ↑ ECJ, Coll. 2000, I-117, 147, marginal note 27.
  8. ↑ Köhler / Bornkamm, UWG. 32 ed. § 5a marginal no. 29: "Rather attributable to the breach of law".
  9. ↑ http://www.horizont.net/marketing/nachrichten/BGH-Urteil-Monsterbacke-Werbung-ist-nicht-irrefuehrend--132818
  10. ↑ http://medienrecht-blog.com/2011/05/17/irrefuehrung_foodwatch_goldener_windpaket

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