Unfair Commercial Practices Directive, Chapter 2, Article 5, 1. Unfair Commercial Practices Directive, Chapter 2, Article 5, 4., (a) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 2.

The fact that a trader sends letters to customers of a competitor that has issued a request for proposal to deliver products, in which the former claims that product price is more important to the competitor than product quality, is able to constitute a misleading commercial practice.

Moreover, these statements can also constiute unfair comparative advertising, if they are aimed at trader's competing products. 

A health insurance company invited traders for a bid regarding the supply of certain technical medical instruments. The defendant, a company acting in the field of technical medical instruments, made a bid for the contract but did not win the contract.

Criteria for the acceptance of an offer (a bid) were a competitive price, the liquidity of a trader as well as the technical performance of the respective products.

After coming up short, the defendant sent letters to customers of the health insurance company concerned with the information that it (the defendant) did not win the bid because the sole criterion for acceptance was "as low price as possible" and that the defendant had no chance to win the bid because of their high standards regarding the quality of their products.

The plaintiff is an association for combating unfair competition (Wettbewerbszentrale) of which the health insurance company concerned was a member.

The plaintiff requested cease-and-desist of the defendant's respective statements.

(1) In a short reasoning, the court held that the letters were indeed misleading because they aroused misconceptions over products of competitors and therefore constituted a violation of § 5 I No. 1 UWG. Defendant's allegation, that the sole criteria for winning the bid was a low price, was false because the price was only considered after prescribed quality standards in regard to the products were met.

The statements of the defendant created the impression that products of the winner of the bid do not fulfill minimum quality standards and that the products were possibly of poor quality.

(2) Furthermore, the court found that the letters constituted an unfair comparative advertising in terms of § 6 para. 2 no. 2 and 5 UWG and a violation of competition law in terms of § 3 no. 7 UWG.

Is the fact that a trader sends letters to customers of a competitor that has issued a request for proposal to deliver products, in which the former claims that product price is more important to the competitor than product quality, able to constitute a misleading commercial practice?

Full text: Full text

No results available

No results available

The plaintiff´s request was granted.