An objectively false eye-catching advertisement cannot be corrected by a footnote. This was decided by the OLG Nuremberg in a ruling dated August 16, 2022 (Case No. 3 U 747/22).
Advertisements should naturally be as attention-grabbing as possible and catch the consumer’s eye. However, competition law sets limits on such eye-catching advertising that is further explained by asterisk notes. Consumer deception is present if the eye-catching advertisement is objectively false. This cannot be corrected by a footnote, explains the business law firm MTR Legal, which focuses part of its advisory services on competition law.
This is also shown by the case before the OLG Nuremberg. Here, the defendant prominently advertised kitchens on his homepage. In addition to a generous discount on all kitchens, a free oven was also to be included. Only a footnote at the end of the webpage explained that the discount was only available above a certain sales value and with further restrictions. The District Court of Fürth had already classified this advertisement as misleading to consumers in the first instance and prohibited it.
The OLG Nuremberg confirmed the district court’s decision in the appeal proceedings. It saw a violation of the ban on misleading advertising and thus against competition law in the company’s eye-catching advertisement. For the key statement to the consumer, that there was a discount on all kitchens, was objectively false, according to the OLG. This error could also not be corrected by an explanatory note in the form of a footnote, as it was not merely an ambiguity or half-truth that needed clarification, but a false statement of a verifiable fact, as the OLG Nuremberg clarified.
Furthermore, the court stated that there was no reason for this false statement. It would have been easy to supplement the eye-catching advertisement to indicate that the discount applies from a certain purchase price.
The law firm MTR Legal provides its clients with an attorney experienced in competition law.
