Case law

  • Case Details
    • National ID: link
    • Member State: Germany
    • Common Name:Goldbärenbarren
    • Decision type: Supreme court decision
    • Decision date: 12/12/2013
    • Court: Federal Court of Justice
    • Subject:
    • Plaintiff: Unknown
    • Defendant: Unknown
    • Keywords: black list, professional diligence, unfair commercial practices
  • Directive Articles
    Unfair Commercial Practices Directive, Chapter 1, Article 2, (h) Unfair Commercial Practices Directive, Chapter 2, Article 5, 2., (b) Unfair Commercial Practices Directive, Chapter 2, Article 5, 3. Unfair Commercial Practices Directive, Annex I, 28.
  • Headnote
    (1) To apply professional diligence according to the unfair competition law, it is enough that a business practice significantly influences a consumer group, which is designated as needing protection.

    (2) The application of professional diligence according to the unfair protection law requires that it be directed to a clearly identifiable group of consumers. Therefore, advertising directed to a family does not violate professional diligence according to the unfair competition law because it applies the same extent to adults as well as to adolescents and children. The understanding of an average consumer is thus the relevant standard to assess the advertising, not the understanding of a child.
  • Facts
    The parties produce and sell liquorice and fruit gum. The plaintiff objects to advertising by the defendants for the "H. GLÜCKS-WECHEN" competition.

    The defendant advertised for the competition with a commercial set in a supermarket. In it, the television supporter Thomas Gottschalk meets a family and a mother with two children each. In doing so, he promotes both the products of the defendants and the participation in the competition, in which one has the chance to win one of 100 gold bars worth € 5,000 each.

    The plaintiff maintains that the defendant’s ad constitutes unfair competition because it exploits the commercial ignorance of children and adolescents, which leads them to buy their products on demand.
  • Legal issue
    The court held that the family-oriented advertising of the defendants applies to all family members and thus to the same extent to adults as to children and adolescents. To assess the advertising decisively therefore reauires considering the understanding of an average consumer. According to this, the contested profit promotion does not violate professional diligence or unfair competition law.
  • Decision

    (1) To apply professional diligence according to the unfair competition law is it enough that a business practice significantly influences a consumer group, which is designated as needing protection?

    (2) Does professional diligence according to the unfair protection law apply to an advertisement directed to a family?

    URL: http://openjur.de/u/664013.html

    Full text: Full text

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  • Result
    Appeal successful. Action dismissed.