Article 2 (e)
Article 2 (k)
Article 5 2. (a)
|National ID||4 U 4/08|
|Common name||Decision type||Court decision in appeal|
|Court||Oberlandesgericht - OLG (Hamm)||Plaintiff(s)||Dealer of computer products - name not disclosed|
|Court translation||Higher Regional Court (Hamm)||Defendant(s)||Dealer of computer products - name not disclosed|
|Subject||right of withdrawal|
|Keywords||internet, misleading statements, right of withdrawal|
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It is a misleading commercial practice to create the false impression for the customer of an online shop that the period for the statutory withdrawal right starts from the moment the consumer is instructed about its withdrawal right.
With respect to the consumers' statutory withdrawal right in distance selling contract (in this case, for an online shop), a dealer created the impression that the right of withdrawal started at the moment the consumer receives information on the withdrawal right (instead of after the conclusion of the contract and receipt of the product, as foreseen by applicable legislation).
The plaintiff requested a cease-and-desist order for this commercial practice. According to the plaintiff, the statements of the defendant are misleading, because they do not inform the consumer about the fact that the time period for the withdrawal right only begins at the moment the consumer receives the ordered product.
Is it an unfair commercial practice to create the impression that the right of withdrawal starts at the moment the consumer receives information on the right of withdrawal?
Sections 312 c, 312 d, 355, 126 b BGB (German Civil Code) define that the withdrawal right starts when the consumer receives the ordered product.
The court found that the impression created by the defendant towards the consumers constitutes a violation of §§ 4 No. 11, 3 UWG (the German Unfair Competition Act), because such commercial practice is able to affect the competition in a non-negligible way.
According to the court, such impact must be interpreted in the light of the UCP Directive. The court was of the opinion sections 312 c, 312 d, 355, 126 b BGB are market conduct rules according to § 4 No. 11 UWG, so that their infringement constitutes a violation against unfair competition law, according to § 4 No. 11 UWG.
|URL Decision||Decision full text|
The plaintiff's request was granted.
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