In a recent decision (6 W 72/12), the Brandenburg Higher
Regional Court held that the regulations under competition law
(Section 5a (3) (2) of the Law Against Unfair Competition) require
the address of the registered office of the company to be included
in all directly product-related advertising.
In the adverts, which introduced specific products and stated
prices, a company gave its name and the address of four branches.
The legal registered office was at a fifth address, but this was
not given in the advert.
While the Regional Court deemed the giving of branch addresses
to be sufficient, the Higher Regional Court overturned this and
adjudged that adverts of this kind should be ceased.
Section 5a (3) (2) of the Law Against Unfair Competition entered
German competition law in the course of implementation of the
European directive on unfair commercial practices. It required that
the identity and address of the company should be given where
specific goods or services were offered, and a price stated, in
such a way that a purchaser could make decision to purchase.
The regulation therefore does not apply to image publicity that
does not involve the advertising of specific products. However, as
soon as products and prices are advertised the full (legal) company
name and corporate form etc. must be stated together wi t h the
address of the company's registered office. In the opinion of
the Brandenburg Higher Regional Court it is also not sufficient,
for example, to give details of a website or comparable references
enabling consumers to gain information on the company's
The decision is dangerous because competition associations and
serial litigators will target their searches to find advertising
that, for example, only specifies the company slogan or branch
addresses and therefore lacks the required details.
In addition to this there are numerous further pitfalls in
Section 5a (3) of the Law Against Unfair Competition, which are
often not observed and are also potentially explosive.
Law Against Unfair Competition: Section 5a – Misleading
(1) In assessing whether the concealment of a fact is
misleading, consideration shall be given in particular to its
significance for the transactional decision according to prevailing
public opinion, as well as to the suitability of the concealment
for influencing the decision.
(2) Unfairness shall have occurred where a person influences
a consumer's ability to take a decision, being a consumer
within the meaning of Section 3 subsection (2), through omission of
information that is material in its factual context, taking account
of all its features and circumstances, including the limitations of
the communication medium.
(3) Where goods or services are offered with reference to
their characteristics and price in such manner appropriate to the
communication medium used that an average consumer can conclude the
transaction, the following information shall be deemed to be
material within the meaning of subsection (2) if not already
apparent from the context:
1. all main characteristics of the goods or services to an
extent appropriate thereto and to the communication medium
2. the identity and the geographical address of the
entrepreneur and, where applicable, the identity and geographical
address of the entrepreneur on whose behalf he is acting;
3. the final price, or in cases where the nature of the
goods or services means that such price cannot be calculated in
advance, the manner in which the price is calculated as well as,
where appropriate, all additional freight, delivery or postal
charges or, where these charges cannot be calculated in advance,
the fact that such additional charges may be payable;
4. arrangements for payment, delivery and performance, as
well as complaint handling policies so far as they depart from the
requirements of professional diligence; and
5. the existence of a right of withdrawal or
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about your specific circumstances.
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