Unfair Commercial Practices Directive, Annex I, 5.

According to Annex 1, 5° UCP Directive the insufficient and inaccurate information on inadequate stock within the advertisement for products, constitutes an unfair commercial practice. Conversely, the inadequate stock of advertised products does not, on its own, constitute an unfair commercial practice, if an appropriate information about such fact is clearly given in an advertisement.

The defendant, a supermarket of the discount chain Lidl, advertised in connection to the reopening date of the store, for a period of six days, the product Irish "Kerrygold Butter" with a discount of 23 % as well as an LCD TV-monitor with a discount of approximately 50 %. The advertising was put into a German newspaper.

However, the advertised TV-monitor could not be purchased by consumers on the advertised reopening date of the store at 8.00 AM. The advertised butter was sold out by 12.00 AM on the first day of the advertised period.

The plaintiff, a consumer protection authority, requested cease-and-desist of above mentioned advertisement which did not mention that the defendant had reasonable grounds to believe that it will not be able to offer the products for the entire period advertised.

Conversely, the defendant referred to its advertisement, in which was stated: "This article may be sold out already on the first day of the offer due to limited stock".

The court decided that constitutes a violation of No. 5 annex 1 to § 3 III UWG (the black list), when a trader advertises promotional actions on certain products without mentioning that the product might not be available at the beginning of the advertised period and might be sold out before the end of the period advertised.

An informative note must therefore be clearly formulated, easy to read and must be clearly visible in the advertisement.

The court also decided that the mentioning in the advertisement that "This article may be sold out already on the first day of the offer due to limited stock", is not sufficient to avoid a deception according to No. 5 annex 1 to § 3 III UWG, as in the court's opinion it was not clearly formulated, not easily readable and not well detectable.

The court thus concluded, that the defendant comitted an unfair commercial practice.

Does advertising certain products without mentioning that the products might not be available at the beginning of the advertised period or might be sold out before the end of the period advertised, constitute a violation of the prohibition on unfair commercial practices?

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The plaintiff's request was granted.