Rechtsliteratur

Unfair Commercial Practices Directive, Annex I, 5.

The author comments on the decision of the Federal Court of Justice (I ZR 183/09 - Irische Butter).

The Federal Court of Justice decided that it constitutes a violation of No. 5 annex 1 to § 3 III UWG if a supermarket advertises for discounted products without mentioning in a clear and unambiguous way that the products might be sold out before the end of a promotion although having reasonable grounds for this assumption.

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

The author shares the opinion of the court and assesses that it is in line with the court's precedent case law regarding bait advertising. As the court does not state which form of clarifying statement would prevent a deception according to No. 5 annex 1 to § 3 III UWG, it will be difficult in practice for traders to formulate and position a sufficient clarifying statement.

In the opinion of the author it will be necessary to state the exact amount of advertised products in stock to avoid a misleading advertising.

Furthermore, the clarifying statement should be in direct vicinity to the offer and not only in an accompanying footnote at the end of the advertisement.

This case is related to the "Irische Butter" case I ZR 183/09 of the Federal Court of Justice, also submitted into this database.