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Case detail



Directive article Article 5 1.
Article 5 2.
Annex I al1 11.
National ID 5 W 80/10
Country Germany Decision date 28/06/2010
Common name Decision type Court decision in appeal
Court Oberlandesgericht - OLG (Hamburg) Plaintiff(s) Association for the Promotion of Commercial and Independent Business Interests
Court translation Higher Regional Court (Hamburg) Defendant(s) not disclosed
Subject editorial content
Keywords black listeditorial contentmisleading advertising

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Headnote

The use of editorial content by a trader for purposes of promotion is a violation of the German unfair competition law if the purpose cannot be identified based on the context, content or by the type of the visual or acoustic presentation.

Facts

The defendant published an article as editorial content about a company with the headline "Mother´s Day: Win a travel to Paris". This article was disguised as editorial content, but was in fact an advertisement.

The plaintiff requested a cease-and-desist order for this article.

Legal issue

Is it unfair to disguise a prize contest as editorial content? 

Decision

The court found that the respective article, which was financed by the company by granting the advertised prizes, was disguised as editorial content, but was in fact an advertisement for the company.

According to the court, such type of advertisement constitutes a violation of German unfair competition law (UWG), as consumers received the impression that the article was objective content, instead of an advertisement. This caused the consumers to be misled, so that this "article" constitutes a violation of  Annex no. 11 to § 3 III UWG.

Moreover, according to § 10 Hamburgisches PresseG (Press Law Act of the City Hamburg) this newspaper article should have been clearly titled as advertisement. This infringement of § 10 Hamburgisches PresseG constitutes a violation of  §§ 3, 4 No. 11 UWG.

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EN N/A

Result

The plaintiff's request was granted.

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