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Case detail

B a c k

Directive article Article 2 (i)
Article 7 4.
National ID OLG Jena, Beschluss v. 20.03.2013 - 2 W 137/13
Country Germany Decision date 20/03/2013
Common name Decision type Court decision in appeal
Court Oberlandesgericht Jena Plaintiff(s) Unknown
Court translation Higher Regional Court Jena Defendant(s) Unknown
Subject invitation to purchase
Keywords decision to purchasematerial informationpricetrade marktransactional decision

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Headnote

There is only an invitation to purchase if the advertised product is sufficiently individualised. This is not the case if only the product category and a trademark are mentioned in an advertisement without enabling the consumer to make a purchase. 

Facts

The defendant advertised toys and jeans of different brands in a newspaper advertisement without mentioning the name of its business or stating its address.

Only the website of the defendant was mentioned in the advertisement. The advertisement did not advertise specific products of the mentioned brands but advertised special price offers in regard to these brands: "[Brand name] 10 Euro less - each item starting from Euro 24.99 compared with the RRP" and "[Brand name] jeans each Euro 39". Specific products could not be identified by an average consumer.

The plaintiff sued the defendant for unfair commercial practices, arguing that the advertisement constituted an invitation to purchase but did not include the identity of the trader. The plaintiff claimed cease and desist of the respective advertisement which was denied by the court in the first instance.

The plaintiff appealed this decision.
 

Legal issue

Does not mentioning the address and identity of a trader in an advertisement in which only a product category and a trademark are mentioned constitute a misleading commercial practice?

Decision

The court denied the plaintiff's claim for cease and desist and dismissed the appeal sought by the plaintiff, arguing that the advertisement did not contain an invitation to purchase but was solely advertising the brands of the products without specifying a certain product and did therefore not indicate characteristics of the product and the price in a way appropriate to the means of the commercial communication used and did further not enable the consumer to make a purchase.

Based on articles 2 (i) and 7, 4 as well as recital 14 of the UCP Directive, the court is of the opinion that not every advertisement can be viewed as an invitation to purchase. Further, the ECJ has decided that an invitation to purchase requires that the advertised product can be identified and differentiated in view of a transactional decision. This needs to be determined according to the individual case. The court is of the opinion that such individualization might be given in case the product is advertised with only immaterial product characteristics, but not if the type of the product is not identifiable for the consumer, as is the case here.   

The court found that in this context the advertisement did not constitute an invitation to purchase according to Section 5 a, 3 UWG or article 7, 4 of the UCP Directive.
 

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Result

The plaintiff's request was denied.

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