OLG Hamburg on misleading advertising – No fees means no fees
If something is promoted as being free, then it should in fact be free. Otherwise, this kind of advertising might be misleading and violate competition law, as demonstrated by a ruling of the Oberlandesgericht (OLG) Hamburg [Higher Regional Court of Hamburg].
A bank had made an offer that sounded tempting, advertising that no cash withdrawal fees would be incurred when withdrawing money anywhere in the world with its credit card. The bank advertised in promotional letters that no withdrawal fees would be incurred for withdrawing money from any cash machine either at home or abroad, i.e. „0 cash withdrawal fees worldwide“. However, the offer had a catch: there was a charge for using the card outside of the Eurozone, with this only being explained on the back of the promotional letter.
The Bundesverband der Verbraucherzentralen, Federation of German Consumer Organisations, (VZBV) considered this kind of advertising misleading and requested an injunction. The Hanseatische Oberlandesgericht Hamburg [Hanseatic Higher Regional Court of Hamburg] ruled in favour of the consumer watchdog in its judgment of April 12, 2017 (Az.: 5 U 38/14). The OLG held that provisions pertaining to the incursion of fees and the extent of any charges for withdrawing cash at home and abroad were of central importance to consumers and thus an essential feature of the service. It went on to say that consumers would assume with this kind of promotional letter that no fee would be incurred at home or abroad when withdrawing with the credit card in question. Moreover, consumers would not typically make a distinction here between a cash withdrawal fee and a fee for using the card abroad. Instead, they would assume that no charges would be incurred when withdrawing cash anywhere in the world.
The Court ruled that the explanation on the back of the promotional letter stating that a fee would be incurred for using the card abroad when withdrawing outside of the Eurozone did not suffice to clear up this misdirection. To this end, it was said that a clear notice ought to have been included on the front regarding charges for using the card abroad. The Court also noted that the misleading information was liable to induce consumers to take a transactional decision that they would not have taken otherwise.
Violations of competition law may be met with severe penalties. GRP Rainer Rechtsanwälte notes that these can lead to injunction suits and damages claims. To avoid these outcomes, lawyers who are versed in the field of industrial property rights can advise on issues relating to competition law as well as assist in enforcing or fending off claims.
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