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Case detail



Directive article Article 6 1. (d)
Article 7 1.
National ID 4Ob68/13y
Country Austria Decision date 09/07/2013
Common name Decision type Supreme court decision
Court Oberster Gerichtshof (Wien) Plaintiff(s) Verein für Konsumenteninformation
Court translation Supreme Court (Vienna) Defendant(s) Unknown
Subject advertisement
Keywords material informationmisleading omissionsomissionpricelimitations imposed by the medium

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Headnote

It constitutes a misleading commercial practice to state in readable but small letters below a general offer which is highlighted and written in capital letters, that the trader's offer is only valid under certain conditions.

Facts

The defendant is a company dealing in optical glasses, sunglasses and contact lenses in Austria. In the year 2012 the defendant advertised its products in a television commercial containing a short (four seconds) frame stating "Save EUR 100 now", in capital letters and highlighted.

Smaller text (but well readable) stated that this promotion only applied in case of a purchase of optical glasses (incl. frame) of more than EUR 200.

The plaintiff requested the defendant to cease this advertising practice as it would be misleading for consumers who would think that no conditions would apply.

However, both in first instance and in appeal, the judge held that the clarification by the defendant was sufficient and that it was not reasonable to expect that the average consumer would assume that the offer would apply in a general manner without additional conditions.

The plaintiff appealed again against these negative decisions.
 

Legal issue

Does it constitute a misleading commercial practice to state in readable but small letters below a general offer which is highlighted and written in capital letters, that the trader's offer is only valid under certain conditions?

Decision

The Supreme Court considered this specific advertisement to be misleading, since the highlighted text cannot merely be considered as an "obvious and blatant exaggeration", as the defendant had argued,  but it is to be expected that it is understood literally by the customers.

Furthermore, so the Court held, the clarification is not sufficiently noticeable in light of the short time period of the advert and lack of acoustic noticeability.

The Supreme Court repealed both the decisions of the first instance and of the court of appeal, which have argued that the clarification is sufficient and also that the average consumer would not expect that the offer would apply generally.
 

  URL Decision Decision full text
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EN N/A

Result

Repeal of the previous instances' decisions and confirming the plaintiff's claim.

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