Article 6 1. (b)
Article 6 1. (c)
Article 6 1. (f)
|Common name||4Ob171/12v||Decision type||Supreme court decision|
|Court||Oberster Gerichtshof (Wien)||Plaintiff(s)||Unknown|
|Court translation||Supreme Court (Vienna)||Defendant(s)||Unknown|
|Keywords||authorisation, material information, product characteristics, rights of the trader, sponsorship|
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Claiming to have a certain (correct) capacity in a way that another (incorrect) interpretation of that claim would also be possible, only constitutes a misleading commercial practice in case such practice is able to cause the average consumer to take a transactional decision which he would not have taken otherwise.
The plaintiff and the defendant are competitors in the market of sports clothing.
The plaintiff had won a tender for the provision (against consideration) of winter clothing for workers, partners and volunteers of the Youth Olympic Games in Tyrol respectively the organizing legal person.
The defendant has (prior to the Olympic Games) advertised (inter alia) as "outfitter of the Youth Olympia in Tyrol" ("Ausstatter der Jugend-Olympiade in Tirol").
The plaintiff requested the defendant to cease and desist such advertising as it was misleading.
Both the first judge and the court of appeal considered that the statements of the defendant were misleading.
Does claiming to have a certain (correct) capacity in a way that another (incorrect) interpretation of that claim would also be possible, constitute a misleading commercial practice?
The Supreme Court ruled that the specific advertising was not misleading, arguing that the average reader of the newspaper in which the defendant had advertised would understand the wording "outfitter of the Youth Olympia in Tyrol" in such way that the defendant would outfit the participants, which was the case, and would not connect the advertisement with the personnel of the organizer.
According to the Supreme Court, the advertisement neither indicated that the defendant would be the exclusive outfitter.
|URL Decision||Decision full text|
The advertisement was deemed as not misleading and the plaintiff's claim was denied.
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|C-206/11||Köck||full harmonisation||EU level||Cases are linked to each other for any other reason|
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