The court denied the plaintiff's claim for cease and desist and dismissed the appeal sought by the plaintiff, arguing that the advertisement did not contain an invitation to purchase but was solely advertising the brands of the products without specifying a certain product and did therefore not indicate characteristics of the product and the price in a way appropriate to the means of the commercial communication used and did further not enable the consumer to make a purchase.
Based on articles 2 (i) and 7, 4 as well as recital 14 of the UCP Directive, the court is of the opinion that not every advertisement can be viewed as an invitation to purchase. Further, the ECJ has decided that an invitation to purchase requires that the advertised product can be identified and differentiated in view of a transactional decision. This needs to be determined according to the individual case. The court is of the opinion that such individualization might be given in case the product is advertised with only immaterial product characteristics, but not if the type of the product is not identifiable for the consumer, as is the case here.
The court found that in this context the advertisement did not constitute an invitation to purchase according to Section 5 a, 3 UWG or article 7, 4 of the UCP Directive.