Advertising with guarantees is very popular in online trading and at the same time a point of attack at the top of the warning statistics. A recent case shows that caution should also be exercised when advertising a lifetime guarantee.
It doesn’t matter whether it’s a manufacturer’s or retailer’s guarantee: Advertising with a guarantee is a very effective marketing measure. This creates trust in the interested party and is often the tip of the scales that triggers a purchase decision in favor of the advertiser.
In order for a guarantee advertising to be legally secure, a few things must be observed. Otherwise warnings threaten, and not too short. At Abmahner, the attack of unfair applications for guarantees has become firmly established.
On the one hand, there is established case law that unfair guarantee advertising constitutes a violation of competition law.
On the other hand, mistakes like to creep in again even after a warning, since it is not uncommon for the “manufacturer texts” to be used by retailers to advertise the goods.
Such “consequential errors” are very lucrative for the warning person if a cease and desist declaration with penalty clause has been submitted: then he can collect a so-called contractual penalty from the person who has been warned. They quickly add up to several thousand euros per violation.
Better therefore: do everything right if a guarantee is advertised in the online offers!
If you advertise your products to consumers with a guarantee (e.g. just mentioning the word “guarantee” in the context of the product description is sufficient!), then you absolutely have to make sure that you, among other things
• the reference to the statutory rights of the consumer in the event of defects within the meaning of §§ 437 ff. BGB To give;
• further point out that the exercise of these rights is free of charge and that these rights are not restricted by the guarantee offered;
• state the name and address of the guarantor;
• Mention the duration and geographic scope of the warranty coverage;
• ensure that the advertised guarantee can be clearly assigned to the corresponding goods (ie the impression is not created that goods not covered at all are covered by the guarantee) and
• Provide information on the content and purpose of the guarantee and the procedure to be followed by the consumer in order to make use of the guarantee (in the sense of “guarantee conditions”).
If the guarantee is only advertised as such (e.g. with a statement such as “3 years guarantee” or “Manufacturer’s guarantee: yes”), there is a concrete risk of a warning.
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Problem case “lifetime warranty”
Manufacturers from abroad in particular like to advertise their goods with a lifetime guarantee.
This is intended to express the fact that the manufacturer wants to stand by his guarantee promise throughout the entire lifespan of the product and in this way emphasize the special quality and durability of the goods.
According to an earlier view in case law (judgment of the Frankfurt Higher Regional Court of October 27, 2005; Az.: 6 O 198/04), advertising with a “lifetime” guarantee was per se problematic and misleading.
The background is that “for life” can mean more than 30 years in particular. The regulation of § 202 Abs. 2 BGB regulates, however, that the statute of limitations cannot be aggravated by a legal transaction beyond a statute of limitations of 30 years from the statutory start of the statute of limitations. With a “lifelong” guarantee promise, however, this limit could be broken in the case of very durable products.
According to previous case law, the BGH also generally regarded such advertising as problematic. However, with its decision in 2008 (Federal Court of Justice, judgment of June 26, 2008; Az.: I ZR 221/05), the Federal Court of Justice abandoned its earlier, strict view.
With the decision, the BGH approved at least one guarantee promise with a duration of 40 years, provided that it is a product that has a correspondingly long service life under normal use.
The previously because § 202 Abs. 2 BGB The BGH solved the problem of exceeding the “30-year period” with a trick: Such a long-term guarantee promise is to be regarded as a continuing obligation, so that the “continuously” resulting claims are virtually non-statute-barred.
Since then, advertising with a lifetime guarantee is no longer problematic per se. However, it is important that the product advertised in this way actually has a correspondingly long service life under normal use. Anyone who advertises a disposable lighter with a lifetime guarantee is likely to have problems.
Warning from the competition center
The fact that guarantee advertising in the form of advertising with a lifetime guarantee can still be problematic in other ways is shown by a current procedure by the central competition office:
A flower pot manufacturer from the Netherlands provided its goods with the inscription “Lifetime Warranty”. The flower pots were sold in Germany via garden centers and hardware stores.
Apart from the Internet address of the German-language website of the manufacturer, there was no further information on the advertising label. Anyone who calls up the website can access the company’s English-language terms and conditions, which also regulate further details of the “Lifetime Warranty”.
The central competition authority warned the manufacturer about this promise of guarantee, since it believes that the advertising violates consumer-protecting transparency regulations. In particular, the contents of the terms and conditions relating to the guarantee are invalid, as they are only available in English and therefore in a form that is not clear and understandable for German consumers.
Since no agreement could be reached out of court, an action for injunctive relief was filed with the Cologne Regional Court. There, the manufacturer recognized the asserted claims (LG Cologne, acknowledgment judgment of May 12, 2023, Az.: 81 O 8/23, not final).
If a lifetime guarantee is advertised, this is no longer a problem per se, contrary to the earlier view of case law.
When advertising with a lifetime guarantee, however, the “normal” legal requirements for a guarantee application must be observed. A representation of the aforementioned mandatory information in the context of guarantee advertising is unreliable.
However, the current procedure of the central competition office shows once again that advertising with guarantees is still a topic that is subject to warnings.
Caution is not only required if one of the aforementioned mandatory information is missing. Dealers must ensure that the information is also available in the relevant national language.
Anyone who sells their goods in Germany must ensure that the conditions and contents are also transparently stated in German when applying for a guarantee. This means that guarantee conditions must (also) be available in German.
In particular, because the lifetime guarantee is often promised by foreign manufacturers, the relevant guarantee conditions are sometimes not even available in German.
In such a case, dealers should refrain from advertising the manufacturer’s guarantee at all, otherwise there is a risk of trouble or ask the manufacturer to provide a German version of the conditions and then include them. The presentation of (only) English-language conditions for German customers is generally not sufficient.
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