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Case detail



Directive article Annex I al1 11.
National ID 6 U 30/11
Country Germany Decision date 29/11/2011
Common name Decision type Court decision in appeal
Court Schleswig-Holsteinisches Oberlandesgericht Plaintiff(s) /
Court translation Higher Regional Court Schleswig-Holstein (Schleswig-Holstein) Defendant(s) /
Subject advertorial
Keywords advertisementblack listeditorial content

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Headnote

Publishing an advertisement which is worded in an effusive way on a page of an editorial magazine or newspaper which is entitled "Advertisement Forum" does not constitute an infringement of the black listed provision on advertorial content.

Facts

The plaintiff is an agency fighting unfair competition. The defendant is a newspaper publisher from Schleswig-Holstein.
The defendant published an advertisement which praised in an effusive way the therapy methods of a cosmetician with the wording:
"With strong waves against fat".
The layout of the advertisement was identical to the layout of an editorial article and was published on a page which was entitled "Advertisement Forum".  The contact details of the cosmetician were printed at the end of the article. The plaintiff claimed an infringement of  § 3 III in conjunction with Annex Nr. 11 UWG.
 

Legal issue

Does publishing an advertisement which is worded in an effusive way on a page of an editorial magazine or newspaper which is titled "Advertisement Forum" constitute an infringement of the black listed provision on advertorial content?

Decision

The court denied an infringement of § 3 III in conjunction with Annex Nr. 11 UWG. The court reasoned that the average reader (consumer), being reasonably well informed and attentive, is able to perceive that he is not reading an article but an advertisement. This could be deducted from the label/title "Advertisement Forum" and the effusive description of the therapy methods. The court concluded that there was no sign covering-up the promotional nature of the advertisement and therefore there was no violation of § 4 UWG.

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Result

The plaintiff's request was denied.

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