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Case detail



Directive article Article 7 1.
Article 7 4. (a)
National ID 4 U 141/11
Country Germany Decision date 13/10/2011
Common name Decision type Court decision in appeal
Court Oberlandesgericht Karlsruhe (Karlsruhe) Plaintiff(s) /
Court translation Higher Regional Court Karlsruhe (Karlsruhe) Defendant(s) /
Subject fine print
Keywords advertisementaverage consumerinformation requirementsmisleading omissions

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Headnote

Mentioning the references of a test result which is mentioned in an advertisement, whereby the reference are printed in a very small font, constitutes a misleading commercial practice.

Facts

The defendant advertised a mobile phone by referring to a test result of a third party. The reference where the test could be found was displayed in letters with a font size of less than 6 points. The test result of the compared phones was printed in a small size. Further means to highlight such information were not applied.
The plaintiff's application for a preliminary injunction on the basis of misleading omissions was denied by the court of first instance. The plaintiff went into appeal against this decision.
 

Legal issue

Does a reference to the finding place of a compare test which is mentioned in an advertisement, whereby the reference is printed in a very small font, constitute a misleading commercial practice?

Decision

The court confirmed established case law, holding that using test results in an advertisement is unfair if the references to these results are not indicated towards the public. According to the court, the situation where due to the design of the advertisement the consumer is  not informed on the reference in an easy and unambiguous manner, is comparable to a missing reference.
The court held that the mandatory indication of references to test results for advertising purposes must be at least in a font size of 6 points or highlighted by other effective means in order to be easily identifiable by the average consumer. As people with impaired eyesight also belong to the group of average consumers a presentation in such tiny letters has the same effect as if the information was not given at all.
 

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Result

The court granted the plaintiff's request.

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