Does not constitute an unfair commercial practice, a practice where a trader sends an unsolicited product which must be activated by customers by a separate declaration of intent and when the advertising character of the commercial letter is obvious from the letter's outward appearance.

The plaintiff is the umbrella organization of the 16 consumer centers of the German federal states. The defendant is a major German bank.

The defendant sent his customers - unsolicited -VISA credit cards issued for the individual customer together with an advertising letter. The advertising letter contained an application template automatically pre-filled with the name and the address of the customer. Within the letter the bank informed the customer that in order to activate the credit card he had to send an activation order to the bank. Then, the card would have been applicable worldwide within a few days.

As a special bonus, the defendant did not charge the annual fee of EURO 49 for the first year when the activation request was sent before a certain date.
 

Does it constitute an unfair commercial practice when a trader sends unsolicited products which must be activated by customers by a declaration of intent and when the advertising character of the commercial letter is obvious from the letter's outward appearance?

The court denied an infringement of the UWG, especially of § 7 UWG. Pursuant to the judgment the EU Directive 2005/29/EC was not to be taken into consideration as of the date of the former decision the deadline for its transposition had not run out yet. Further, the court reasoned that such advertising constitutes a solicitation, but this solicitation is not unconscionable. The consumer could unambiguously recognize the advertising character of the letter as soon as he opened it. Moreover, the average customer could - even without specific information how to proceed if he was not interested in the offer - understand that for the use of the credit card a further and separate declaration was required. And finally, the customer could dispose the credit card if he was not interested in such services. The additional effort required to destroy the personal data on the card must be accepted by the customer and it does not impair the customer's freedom of decision, so the court held.

The plaintiff's request was denied.