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Case detail



Directive article Article 6 1.
Annex I al1 15.
National ID 6 U 79/09
Country Germany Decision date 18/09/2009
Common name Die letzten 6 Ausverkaufstage Decision type Court decision in appeal
Court Oberlandesgericht - OLG (Köln) Plaintiff(s) carpet dealer - name not disclosed
Court translation Higher Regional Court (Cologne) Defendant(s) carpet dealer - name not disclosed
Subject clearance sale
Keywords black listclearance salemisleading advertising

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Headnote

Continuing a business after the date for which a clearance sale has been announced, constitutes a misleading commercial practice under the German Unfair Competition Act.

Facts

The defendant advertised a total clearance sale in a newspaper with the wording: "The last 6 closing sale days. THE END! OVER! PAST! Total Clearance. Last Call!", but did not close the shop after the announced six days.

The defendant stated that he had the intention to close the shop at the time the advertisement of the clearance sale was placed in the newspaper, but changed his mind shortly before the end of the clearance sale.

The plaintiff requested a cease-and-desist order for the contested advertisement.

Legal issue

Does a qualification as a misleading commercial practice require that the shop owner had the intention to continue his business at the time an advertisement for a clearance sale was placed, or is it already a violation of the (national implementation of the) UCP Directive if the shop owner does not close his shop after the advertised closing date, even if he had the intention of closing it when placing the advertisement?

Decision

In order to qualify as a misleading advertisement according to § 5 UWG, the intentions of the advertiser are irrelevant. If a shop owner does not close his shop after the end of an announced total clearance sale, § 5 I Nr. 2 UWG (the German Unfair Competition Act) is violated, irrespective of the fact that the owner only decided not to give up his shop after he started advertising the total clearance sale. 

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Result

The plaintiff's request was granted.

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