German Federal Court of Justice, decision dated March 19, 2014, case no. I ZR 185/12

(Up to now) it is quite normal for web shop operators to emphasize a "money-back guarantee", a two year warranty or something similar on their website in order to persuade customers to buy their products.

The problem with such marketing slogans is that the web shop operator is, in fact, advertising with features which are self-evident when doing business with consumers. In B2C transactions, a consumer always has the above mentioned rights pursuant to mandatory law. The seller is in no position whatsoever to effectively exclude them.

The Federal Court has now put an end to this kind of advertising with features which are self-evident. The Court ruled that advertising with such features, i.e. with rights which the customer has anyway so that the seller's offer has no extra and does not really stand out against offers from other suppliers, is anti-competitive behaviour.

On the other hand, it is acceptable to draw attention to the fact that the consumer has such rights as a matter of mandatory law. By doing so, the seller will not stand out against its competitors.

However, if the seller voluntarily grants the consumer rights over and above the compulsory legal requirements, then it can advertise this. For example: Since the new E-Commerce Law came into force in mid June 2014 (See Orrick ECG Newsletter 1/2014) this will apply to a right to return goods free of charge in connection with exercising a 14 day right of withdrawal in e-commerce. Under the previous law, the seller mandatorily had to bear the costs for such a return (and was not allowed to advertise with a right to return free of charge), whereas he can now shift these costs over to the customer.

E-Commerce companies should check the marketing slogans in their web shops as to whether they contain features which are self evident and, where necessary, make suitable changes in order to avoid the risk of warnings.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.