Case law

  • Case Details
    • National ID: link
    • Member State: Germany
    • Common Name:Paketpreisvergleich
    • Decision type: Court decision in appeal
    • Decision date: 19/11/2009
    • Court: Federal Court of Justice
    • Subject:
    • Plaintiff: Unknown
    • Defendant: Unknown
    • Keywords: comparative advertising, price comparison, unfair commercial practices
  • Directive Articles
    Misleading and Comparative Advertising Directive, Article 4, (c)
  • Headnote
    In comparative advertising a price comparison is misleading when the basis for how the price is calculated by competitors substantially differs and the advertiser does not clearly and unambiguously refer to this.
  • Facts
    The plaintiff and defendant are in competition with each other in the parcel delivery branch. The defendant offered its services at parcel stands, which were located in stores, bakeries, gas stations and kiosks. The defendant advertised on a poster at over 162 of these parcel stands. The plaintiff claims this poster contains misleading and unlawful, nonobjective comparative advertising. The plaintiff claims that the poster leaves the impression that the delivery of all packages is less expensive with the defendant's services. The trial court awarded an injunction and compensatory damages. The appeal led to the dismissal of plaintiff's claim (by the lower appellate court). The plaintiff is seeking the reinstatement of the trial court.
  • Legal issue
    The court found that when observing defendant's advertisement comparing its prices to the ones of the plaintiff, the consumer cannot see how the plaintiff's pricing system takes dimension into consideration differently. As a result the plaintiff's smaller, but heavier packages cost more than defendant's, but the plaintiff's bigger and lighter packages cost less than the defendant's. The defendant should have revealed this.
  • Decision

    In comparative advertising, is a price comparison misleading when the basis for how the price is calculated by competitors substantially differs and the advertiser does not clearly and unambiguously refer to this?

    URL: http://lexetius.com/2009,4416

    Full text: Full text

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  • Result
    The plainitff's appeal was granted, the lower appellate court was reversed and the judgment of the trial court was reinstated.