Companies promoting their products need to ensure that consumers have a realistic opportunity to purchase them. That was the verdict of the OLG Koblenz (Higher Regional Court of Koblenz) in a recent ruling.
GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: Advertising may be impermissible if consumers do not have a realistic opportunity to purchase the advertised products even within a short period of time. If that is the case, a reference to the limited quantity is not enough. That was the decision of the Oberlandesgericht Koblenz (OLG) in its recently published ruling of December 2, 2015 (Az.: 9 U 296/15).
In the case in question, a company had promoted a household appliance that was supposed to be available on a specific day in stores and from 6 pm online. However, the OLG found that the device was no longer available online from as early as 6:04 pm. The Court held that the advertising had thus violated Germany’s Gesetz gegen den unlauteren Wettbewerb (UWG) [Unfair Competition Act]; the company ought to have clearly pointed out that the stock of this item was limited. The OLG stated that if the company is not able to supply an adequate amount of the product for a reasonable period of time at the advertised price then this is misleading by omission to consumers. It went on to say that a reference to there being only a limited quantity was not sufficient to dispel this confusion.
The OLG held that the fact that the device was no longer available online after four minutes had passed indicated that the retailer had not built up sufficient stocks. The Court left open the question of what constitutes an appropriate amount of time and adequate stocks, stating that this comes down to the average consumer’s point of view.
The OLG took a different view when it came to the product’s sale in stores. While the appliance also sold out quickly in the stores, the company could not assume based on its experiences with previous sales promotions that the amount would not be sufficient.
Should infringements of competition law occur, these can result in formal written warnings, injunction actions or claims for damages. Lawyers who are competent in the field of competition law can advise companies as well as enforce and fend off claims.
http://www.grprainer.com/en/legal-advice/intellectual-property-law-and-trademark-law/advertising.html
