Prohibited Advertising Directed at Children in Germany
Children are an interesting target audience in the field of advertising. That being said, it is important for businesses to be careful not to infringe Germany’s Gesetz gegen den unlauteren Wettbewerb (Unfair Competition Act).
Computer games, gaming consoles and the like can be found in almost every household. Children represent an important target audience, but that does not mean that advertising for computer games is automatically geared towards children. That was the conclusion of the Landgericht Berlin (Regional Court of Berlin) in one of its rulings (Az.: 16 O 648/13).
The provider of an online fantasy game had promoted additional features available at a cost for its computer game with a 12 and above age rating. In order to play, it was necessary to create an account and specify one’s date of birth. If, according to this information, the player was younger than 16, then the parents had to set up the account for the child. The advertising for additional game elements featuring the sentence “Kauft ein im Haustiershop” (Buy one in the pet shop) addressed potential customers using the familiar form of address in German. One consumer organisation believed this to be prohibited advertising directed at children and thus a violation of competition law. It sought an injunction, arguing that the familiar form of address, presentation as a fantasy game and the opportunity to create an account for minors indicated this.
The LG Berlin dismissed the legal action, stating that the advertising was not a direct invitation to purchase aimed at children. It went on to say that an invitation presupposes that a group of persons be specifically addressed. Whether this is an invitation depends on the children’s point of view. Characteristics features were said to include the use of childlike vernacular, images of children as well as the product in question itself, e.g. a toy. The Court held that the use of “Du” as a form of address did not on its own indicate an invitation aimed at children, with this now being common amongst adults as well.
The Court left open the issue of defining children by age. The Court in this case proceeded on the assumption that those under 14 are minors. However, one could also categorize anyone under the age of 18 as such.
Advertising statements directed at children are something of a tightrope walk. It is easy to commit an infringement of competition law. A lawyer who is qualified in the field of competition law ought to be consulted for the purposes of fending off and enforcing claims.
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