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Case detail



Directive article Article 6 1. (b)
Article 6 1. (c)
Article 6 1. (f)
National ID 4Ob171/12v
Country Austria Decision date 19/03/2013
Common name 4Ob171/12v Decision type Supreme court decision
Court Oberster Gerichtshof (Wien) Plaintiff(s) Unknown
Court translation Supreme Court (Vienna) Defendant(s) Unknown
Subject misleading advertising
Keywords authorisationmaterial informationproduct characteristicsrights of the tradersponsorship

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Headnote

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.

Facts

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.
 

Legal issue

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?

Decision

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
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Result

The advertisement was deemed as not misleading and the plaintiff's claim was denied. 

Additional information

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Related case(s)

National ID Common Name Subject Country Link type
C-206/11 Köck full harmonisation EU level Cases are linked to each other for any other reason

Legal Literature

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