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Case detail

Directive article Article 5 1.
Article 5 2.
Article 5 3.
National ID 6 U 108/07
Country Germany Decision date 29/05/2008
Common name Decision type Court decision in appeal
Court Oberlandesgericht - OLG (Frankfurt am Main) Plaintiff(s) not disclosed
Court translation Higher Regional Court (Frankfurt on the Main) Defendant(s) cable network operator - name not disclosed
Subject misleading advertising
Keywords average consumercomparative advertisingmisleading advertisingmisleading omissionsmisleading pricemisleading statementsproduct characteristics

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Headnote

(1) A telecom operator is obliged to point out that "call by call" services cannot be used when it makes a comparative advertisement with a provider where customers can use "call by call" services.  

(2) A telecom operator is obliged to indicate additional installation fees if the installation is required to use the advertised products.

(3) The statement "3 times first choice" is not a misleading advertisement, because the average consumer interprets this statement as a typical advertisement declaration, and not as objective information.

Facts

 

The defendant is a cable network operator that also offered telephone and internet services.
 
Via three flyers (which were added as inlays to newspapers), the defendant advertised for an "Internet-Flat", a "Double-Flat" (which included internet and telephone services) and a "combi-Flat" (which also covered digital TV). In the advertisement, the defendant: 
- did not explain that the customer does not have the possibility to use "call by call" services (i.e., the possibility to use a different telephone provider than the cable network operator by using a different dialling code, which is often used for phone calls to foreign countries to choose the cheapest provider for this country);
- used the statement "3 products, 2 flat rates, 1 price", while calls to foreign countries were not included;
- did not mention the additional fees for the installation of the product; 
- used the slogan "3 times first choice"
 
According to the plaintiff, these advertisements were misleading statements, which also infringed the German Ordinance on Price Statements (PAngV). The plaintiff therefore requested a cease-and-desist order for the further use of the disputed statements. The plaintiff was of the opinion that this type of advertisement constitutes a violation of  §§ 1 PAngV, §§ 3, 4, 5, 7, 8 UWG.

Legal issue

(1) Under which circumstances is a telecom operator obliged to point out that the customer does not have the possibility to use "Call by Call" services?

(2) Is the statement "3 products, 2 flat rates, 1 price" a misleading advertisement if calls to foreign countries are not included?

(3) Under which circumstances is a provider of telephone services obliged to indicate additional fees for the installation?

(4) Is the statement "3 times first choice" a misleading advertisement?

Decision

 

(1) A telecom operator is obliged to point out that "call by call" services are not possible within its advertised offer if he makes a comparative advertisement in regard to a provider where customers can use "call by call" services. The court found that the possibillity to use such "call by call" services is crucial many customers, even if a flatrate for German local calls is part of the offer. Call by call services are capable to reduce costs to foreign countries significantly and are therefore a considerable factor in a consumer's transactional decision. Concealing a disadvantageous fact is a misleading commercial practice, and therefore a violation of German Unfair Competition Act (UWG).
 
(2) The statement "3 products, 2 flat rates, 1 price" is not a misleading advertisement, because this statement cannot be understood as such that all phone calls, including phone calls to other countries, are included in the flat rates.
 
(3) An advertiser is obliged to indicate additional installation fees if the installation is required to use the advertised products.
 
(4) The statement "3 times first choice" is not a misleading advertisement, because the average consumer interprets this statement as a typical advertisement declaration, and not as an objective information.

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Result

(1) The plaintiff's request was granted.

(2) The plaintiff's request was denied.

(3) The plaintiff's request was granted.

(4) The plaintiff's request was granted.

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