23. Sep 22

Promoting a discount on “everything” is anticompetitive if key products are excluded

The statement “15 percent off everything” is anticompetitive when featured in advertising if key products are excluded. And adding an asterisk does not change this, according to Hamburg’s regional court, the Landgericht (LG) Hamburg.

Generous discounts on “everything” are designed to entice consumers. Only on closer inspection does it become clear that the term “everything” is relative, with asterisks in brochures, newsletters, and the like often indicating that various products are excluded from the promotion.

In a ruling from December 20, 2021, the Landgericht Hamburg held that the promotional statement “15% off everything for today only” is anticompetitive if key products are excluded from the promotion. We at the commercial law firm MTR Rechtsanwälte can report that the Court went on to clarify that this is the case even if there is an asterisk indicating that the discount does not apply to all products.

The case in question concerned a company that had featured the statement “15% off everything for today only” in an online newsletter. This was accompanied by an asterisk whose notice at the end of the newsletter listed a series of products that were excluded from the promotion.

The LG Hamburg noted that while it is generally possible for an advertising statement to be qualified by an asterisk, this is not the case if, as in this case, it is used to exclude significant sections of the product line from the promotion. It was said that consumers would not expect that the discount does not apply to relevant parts of the product range and that the asterisk is meant to inform them about this. The matter was further complicated by the fact that in this case the notice associated with the asterisk was not located close to the promotional statement but rather at the end of the newsletter. This increased the likelihood that consumers would not pick up on the notice. Indeed, the advertisement was deemed not to have been designed in such a way that consumers would take note of the asterisk notice.

Accordingly, the LG Hamburg concluded that the advertising was anticompetitive and in breach of Germany’s Unfair Competition Act (UWG).

Lawyers versed in antitrust and competition law can provide counsel.

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