BGH on Advertising Without Option to Order

The Bundesgerichtshof (BGH), Germany’s Federal Constitutional Court, has ruled that advertising for textiles need not mention their composition if the promotional brochure does not offer the opportunity to order.

Textiles can be advertised in a brochure even in the absence of information regarding their exact composition. This is at least true if the brochure does not present consumers with the opportunity to order the relevant products. That was the verdict of the Bundesgerichtshof in its ruling of March 24, 2016 (Az.: I ZR 7/15). The Karlsruhe judges held that this infringes neither the EU Regulation on Textile Labelling (Regulation (EU) No. 1007/2011) nor competition law.

A fashion company had promoted textiles in a brochure without including information concerning their composition. A competition association viewed this as a violation of the EU Regulation on Textile Labelling as well as Germany’s Gesetz gegen den unlauteren Wettbewerb (UWG) [Unfair Competition Act].

Like the courts of lower instance before it, the BGH did not consider this to be a violation. Information pertaining to the composition of textile fibres needs to be provided if the goods are made available on the market. However, the Court held that this was not the case here, as the promotional brochure did not offer the opportunity to order and thus the goods had not been directly placed on the market. It stated that this kind of brochure advertising included information aimed at consumers that is meant to incentivize them to visit the store and potentially purchase the textiles there. The Court went on to say that it is only then, at the point when the goods are being sold or ordered, that the customer is required to be informed about the composition of the textiles pursuant to the EU Regulation on Textile Labelling.

Advertising is vital to many businesses and the best way for them to inform consumers about their goods and services. Having said that, advertising often proves to be a delicate balancing act. Failure to observe statutory regulations can result, for instance, in infringements of the UWG. Possible consequences of this include formal written warnings, injunction suits and damages claims. Businesses can turn to lawyers who are experienced in the field of competition law for advice and to fend off or enforce claims.

GRP Rainer LLP is an international firm of lawyers and tax advisors who are specialists in commercial law. The firm counsels commercial and industrial companies and corporations, as well as associations, small- and mid-sized businesses, self-employed freelancers and private individuals worldwide from offices in Cologne, Berlin, Bonn, Dusseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London UK.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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