An objectively false headline advertisement cannot be corrected by a footnote. This was decided by the Nuremberg Higher Regional Court in a ruling on August 16, 2022 (Case No. 3 U 747/22).
Advertising should of course be as striking as possible and catch the consumer’s eye. However, competition law imposes limits on headline advertising, which is further explained by asterisks. A deception of the consumer occurs if the headline advertisement is objectively false. This cannot be corrected by a reference in the footnote, explains the law firm MTR Rechtsanwälte, which has a focus on competition law in its consulting services.
This is also demonstrated by the case before the Nuremberg Higher Regional Court. Here, the defendant had prominently advertised kitchens on his homepage. In addition to a generous discount on all kitchens, there was also supposed to be a free oven. Only the footnote at the end of the website explained that the discount would only apply with a certain sales value and further restrictions. The Fürth Regional Court had already classified this advertisement as misleading for consumers in the first instance and prohibited it.
The Nuremberg Higher Regional Court confirmed the decision of the regional court in the appeal proceedings. It saw in the headline advertisement of the company a violation of the prohibition against misleading and thus against competition law. Because the essential statement for the consumer, that there was a discount on all kitchens, was objectively false, according to the Higher Regional Court. This error could 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 concerning a verifiable fact, the Nuremberg Higher Regional Court clarified.
Furthermore, the court stated that there was no reason for this false statement. It would have been easy to supplement the headline advertisement to indicate that the discount applied from a certain purchase price.
The law firm MTR Rechtsanwälte provides its clients with an attorney experienced in competition law.
