Decoy offer

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A decoy offer or decoy offer is an advertising measure for a particularly inexpensive product or service that the entrepreneur cannot provide in adequate quantities for a reasonable period of time. Consumers attracted by it are supposed to be tempted to switch to their expensive products.

European Union

The European Union has recognized decoy offers as misleading, always unfair business practices that must therefore be prohibited in the Member States, which, like other unfair business practices, harm consumer interests and inhibit entrepreneurs and consumers from participating in a functioning internal market and its freedoms. The Directive 2005/29 / EC of the European Parliament and of the Council of 11 May 2005 on unfair commercial practices in the internal market between businesses and consumers they therefore identifies one of 31 groups of cases, defining it as "an invitation to purchase products at a specified price without it being made clear that the trader has sufficient reasons to assume that he will not be able to provide this or an equivalent product at the stated price for a period and in a quantity for delivery or by another trader to be provided as it would be appropriate in relation to the product, the scope of advertising used for the product and the offer price ”.

Germany

If a decoy offer is a misleading offer with regard to the stock quantity, the person concerned is acting anti-competitive in accordance with Section 5 of the Act against Unfair Competition (UWG). There it is regulated that the provider must keep a sufficient supply with regard to his advertising with inexpensive offers; the consumer expects the goods on offer to be available at the point in time announced or anticipated under the circumstances in an amount that will cover the anticipated demand. If this is not the case, the consumer will be misled.

In principle, the addition “as long as stocks last” does not release the advertising company from its obligation to keep the goods in sufficient quantities; This phrase is a "legally irrelevant banality".

The previous rule for the necessary inventory of goods was three days from the appearance of the announcement; more recent case law, on the other hand, sometimes considers it to be available on the day of publication of the advertisement as sufficient. In another case, however, the BGH ruled that the item advertised in an advertising insert had to be in stock for one week. The UWG stipulated a supply for two days as a guideline; the corresponding paragraph ( Section 5 (5) UWG old version) was repealed in 2008 without replacement. However, if "the stocking is shorter than two days, it is up to the entrepreneur to prove the adequacy."

See also

literature

Individual evidence

  1. ↑ BGH, judgment of January 17, 2008 - III ZR 239/06 , Rn. 10.
  2. ↑ Directive 2005/29 / EC (PDF) of the European Parliament and of the Council of May 11, 2005 (Directive on Unfair Commercial Practices), Annex I, Number 5
  3. ↑ a b number 5 of the list of inadmissible business activities according to the appendix to § 3 paragraph 3 of the law against unfair competition
  4. ↑ Quote from Annex I No. 5 Directive 2005/29 / EC , recitals (2) to (4) on the general background
  5. ↑ Nordemann 2003, 115
  6. ↑ for example the BGH. In: Commercial legal protection and copyright , 1989, 609, 611 cameras
  7. ↑ BGH GRUR 1999, 1011, 1012 advertising supplement