Keep an eye on brochure advertisement – information about advertiser
In the present court case, a DIY store promoted various items in an advertising brochure by giving specific prices. The brochure contained a list of DIY stores, which adhere to the advertised offer, by providing their address, email address and telephone number. Moreover a web address was given.
The regional court in Hamm decided that the given information was not in accordance with the law on fair competition and ordered the advertising DIY store to omit such advertisement and to pay the costs for the warning.
The court made clear that the information on the identity and address of an advertising company must comprise the company name, under which the company trades and its specific legal form as registered with the commercial register in order to avoid a misleading of consumers when handing out advertising brochures. In the present case, the court decided that it was not sufficient to give the brand name under which the company’s products were sold, since there were at least five entries in the German commercial registered to be found for different companies, comprising the brand as part of the company name and thus it was not clear for the consumer, which company would be its contractual partner. However even apart from this, the regional court made it clear that many consumers, although knowing the brand under which company products were sold, do not know the legal form of the company. This however is considered essential to the identity of the advertising company by the court. The court also pointed out that a reference to a website is not sufficient, because it cannot be expected from the consumer to look for the required information on the internet or to go to the business premises of the company in order to figure out the required information.
Moreover, the court clarified that the reference to addresses of various operators of DIY stores, who want to adhere to the advertised offers, is also not sufficient. The specific identity and address of the advertising company must be given. In the present case these were not the operators of the DIY stores (sales departments), but the defendant, which operated as management/ administration for the DIY stores. Accordingly, the contact address of the management of the defendant would have to be indicated on the advertising brochures.
In the court’s opinion the infringement on the information on the identity of the advertising company is also significant, since it is apparent from the law on fair competition and the European provisions on legal information obligations, which forms the basis for the provisions of the law on fair competition, that the information on the identity of an advertising company is per se essential information, which is suitable to cause a misconception among consumers. Therefore a separate assessment on the level of materiality was not necessary.
A similar decision was rendered by the regional court Hamm already in February 2012. Companies that distribute advertising brochures to consumer should therefore double check, whether their brochure indeed gives the company name and legal form of the advertising company, as well as the address of the advertising company, each of them as registered with the commercial register.
The clients of our law firm are mainly foreign companies (non-EU and EU-companies) as well as German companies. We serve middle-sized companies (mainly corporations) as well as bigger companies listed on the stock exchange.
In addition to companies of the financial service sector (banks and investment companies), most of our clients belong to the manufacturing trade or the industrial sector. Our client's industrial focus is, among others engineering (mechanical and plant engineering), furniture and food industry and the transportation sector, however we are also experienced in the construction sector. The issues arising with the business activities of those companies with regard to fiscal and business law, under which we also define issues with regard to individual and collective labour law, therefore belong to our consulting spectrum. In case of acquisition of companies, we undertake the transaction advisory and preparation of documentation as well as a legal due diligence. If fiscal or economical issues arise, we have renowned corporation partners at hand.
Due to the international profile of the law firm, a very important field of consultation naturally is cross-border commercial law and the securitisation of receivables by appropriate means of securitisation, as well as the collection of commercial receivables.
As a result of our expertise in national and international insolvencies and restructurings, another important scope of our services is the consultation in reorganization/restructuring and insolvency related matters. With regard to the European insolvency regulation (Counsel Regulation) (E.C.) (No.1346/2000) we possess profound knowledge and experience, which has been maintained after having been tried and tested in practice.
Due to previous activities of the founder of the law-firm as "workout" specialist for large credits in a German financial institution, we are able to advise our clients from the point of view of a potential creditor as well as the debtor company's view. Our founder's strength in mediating between the debtor and financial institutions and negotiate realisable restructuring plans results in acceptable and overall prompt solutions for all participants.
We are members of B.R.S.I (Bundesverband Restrukturierung, Sanierung und Interim Management- Corporate Restructering Associations Germany), BCCG (British Chamber of Commerce in Germany), PZGH (Polskie Zrzeszenie Gospodarzo Handlowe) –Polish Association of Economy and Commerce), GRUR (Deutsche Vereinigung für gewerblichen Rechtsschutz und Urheberrecht e.V. – German Association for the Protection of Intellectual Property) and DAV (Deutscher Anwaltsverein - German Lawyers Association).
Phone: +49 6241 97249 0
Fax: +49 6241 97249 11
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