A current decision of the Nuremberg Higher Regional Court (judgment of December 23, 2022 – Az.: 3 U 1720/22) deals with eye-catching advertising. The court makes it clear that eye-catching advertising that objectively contains incorrect information cannot be corrected by clarifying footnotes. Otherwise, the error can be ruled out by a clear and unmistakable note, which is itself part of the eye-catcher. More on that in this post…
I. Anything but ads…
If you don’t advertise, you die – that’s a dictum in business. There is of course something to it – and that is why there are always numerous warnings and court decisions in this area. This time it was a print advertisement: A large furniture store advertised in a conspicuous print ad with the words:
“39®% In ALL departments
Tables & chairs – beds – sofas – kitchens – reduced goods – big brands – eXpress – household – carpets – lamps – decoration – curtains”
At the end of the ad, the R character was then resolved as follows:
(…) grants you the following discount: 39% in all departments on furniture, kitchens and mattresses as well as articles in the household, gifts, decoration, bedding, curtains, lamps and carpets departments. Excluded from this discount are purchase vouchers, books, otherwise reduced products, items marked as ‘low price’ or ‘from our advertising’ and branded items (…).
The lower court, the district court of Nuremberg-Fürth (ruling of May 24th, 2022 – Az.: 3 HK O 8003/21), classified this advertising as misleading because insufficient reference was made to the existing restrictions – according to the judges of the district court:
“The targeted public understand the defendant’s advertising to the effect that it grants a discount of 39% on the entire range in all departments (…). This statement is incorrect (…) as can be seen from the small print at the bottom The end of the page results in (…).The target public is given a misconception about the scope of the discount campaign and the factual reach of the price reduction advertising. A sufficiently clear and unambiguous correction of the advertising is missing. It is already questionable whether a Eye-catching advertising such as the one at issue, in which, as part of an overall announcement, individual information is highlighted in comparison to the other information to which the public’s attention should be drawn in particular (…), can even be corrected by footnotes. “
In any case, there is no reference that provides sufficient information about the exceptions.
The defendant’s appeal is directed against this judgment, with which it seeks the dismissal of the lawsuit. She submits that the advertisement only pointed out that the advertised discount was granted in all departments of the furniture store, but not on all articles. The defendant claims that the discount was granted on around 78% of the entire range. She points out that the advertisement contains a footnote detailing the exceptions and limitations of the discount.
2. Eye-Catching Advertising: The uncorrectable objectively flawed advertising
The Higher Regional Court of Nuremberg saw the advertising as misleading – it was an uncorrectable, objectively wrong, eye-catching advertising. An eye-catching advertisement is an advertisement in which certain information is particularly emphasized and thereby clearly distinguished from others.
In this connection, the court also referred to so-called 3-step modelwhich should be considered when examining whether eye-catching advertising is misleading:
a) Obviously false information without reason
Is it an untrue statement about an objective, easily verifiable fact for which there is no reasonable reason (cf. BGH, GRUR 2001, 78 – wrong manufacturer price recommendation), or is it a clearly wrong, easily avoidable advertising statement for which there is no reasonable reason, there is a “blatant lie”. In such cases of objective inaccuracy, the error that has arisen cannot be corrected by a footnote or similar explanatory additions.
b) Misconception when viewed in isolation
In other cases, where a prominent claim in an advertisement is misleading when viewed in isolation, the misconception thereby created can be dispelled by a clear and unmistakable notice that is itself part of the focal point. It is not sufficient if the advertised product is shown together with other items required for its use and the explanatory note is placed at the end of the product information within the product description, without being part of the eye-catcher and without reference to the highlighted information.
c) Exception: advertising for durable and expensive goods
In exceptional cases, even without an asterisk and without direct spatial assignment to the eye-catcher, clarification in a short and clearly structured further text can be sufficient. This is particularly true in the case of advertising for durable and expensive goods, which the consumer deals with in detail and not just superficially and which he takes note of as a whole because of its short and clear presentation.
As part of this examination, the Nuremberg Higher Regional Court came to the conclusion that the statement “39% in ALL departments” represents objectively false advertising:
“The target audience understands the statement “39% in ALL departments – […] Reduced goods […]“ to the effect that in all departments a not insignificant proportion of already reduced goods also benefit from the discount offer. This advertising statement, which is clear to the consumer, is objectively inaccurate, since “otherwise reduced products” are excluded from the offer. It is therefore not just a matter of ambiguity or half-truth in need of clarification, but a false statement of an easily verifiable, objective fact.”
If it is a false statement that is easily verifiable and objective, for which there is no reasonable cause, or a clearly false advertising statement, which can be easily avoided and for which there is no reasonable cause, then there is a so-called “blatant lie ” before. Such an objective inaccuracy cannot be corrected by an explanatory addition in the form of a footnote or similar.
Such a misconception created by the eye-catcher and the error associated with it can only be ruled out by a clear and unambiguous indication, which is itself attached to the eye-catcher.
In this case, an additional note in the form of a footnote or similar is not suitable for correcting the false impression caused – the judges commented:
“The conditions under which, even without an asterisk or direct spatial assignment to the eye-catcher, the explanation in a short and clearly designed further text can exceptionally be sufficient are not fulfilled in the present case. On the one hand, this is not an advertisement that the consumer deals with dealt with in detail and not only briefly. Because the defendant’s sales outlets not only offer durable and expensive goods, but also low-priced everyday objects for the household. It can therefore not be assumed that the consumer will pay the appropriate attention to such advertising as in an offer for a complete bedroom (cf. BGH, GRUR 2015, 698 – bedroom complete). On the other hand, it cannot be assumed that the disputed correction is so short and clear that the consumer can read it taking into account the overall character of the advertisement as a whole, even without a “disturbing factor” – i.e. a footnote or an asterisk.”
Apart from that, the defendant had not even used the classic asterisk reference to indicate the exceptions of the lawsuit, but the R mark. This is already inappropriate:
“In this context, it must be considered on the one hand that – as the Senate can perceive from its own expertise – the average consumer does not perceive the small ® at the top right edge of the frame of the eye-catching advertising as a reference to the small print text at the end of the ad. Rather, he understands it – as far as he notices it at all – as an indication of a possibly existing trademark or other protection of the design of the advertisement, but not as a sign that can be equated with a footnote or an asterisk, because in Germany too, goods traffic with products from the Anglo-American area the ® symbol for registered trademarks known.”
This decision of the Higher Regional Court is not surprising in itself: The decision of the Nuremberg Higher Regional Court fits seamlessly into the already well-established principles of case law on misleading eye-catching advertising. Worth mentioning here are the decisions of the BGH, which developed the 3-step model – we had in this one detailed post pointed out.
Furthermore, on a decision of the OLG Munich here to indicate obligations for discount campaigns.
Incidentally, the Nuremberg Higher Regional Court remains true to its previous line here, since a very similar decision was made in a very similar case. For more information, see this post.
Tipp: Irrespective of this case law of the Higher Regional Court Nuremberg, the requirements for asterisks can be summarized as follows:
- Footnotes must be legible for the consumer without any special effort, concentration and also without tools.
- A general minimum font size is not specified; the lower limit should be around 5.5 pt if the typeface is clear enough.
- Whether footnotes are competitive must be decided on a case-by-case basis; in particular, the criteria of font size, typeface, font color and contrast to the background are to be assessed.
- In the case of print advertisements in particular, care must be taken to ensure that the footnotes are still displayed in a usable quality on the chosen medium; a legible representation in the template is not sufficient.
These guidelines should also apply to online retailers, including their presentation on the website. Again, note that footnotes must be legible (and findable) at all times; the latter is to be observed in particular if the writing is displayed on a patterned or otherwise structured background.
Conclusion: Anyone who lies once is not believed (anymore)
In such cases, case law follows a clear line: There is a step-by-step model for examining eye-catching advertising: false information about an easily verifiable objective fact or a clearly false advertising statement without a reasonable reason is rated as a “blatant lie”. In these cases, the error caused cannot be corrected by an addition. Otherwise, the error can be ruled out by a clear and unmistakable note that is part of the eye-catcher. Exceptions are only possible under certain conditions.
Tipp: Do you have any questions about the contribution? Feel free to discuss this with us in the
Entrepreneur group of the IT law firm on Facebook.