Sweepstakes coupling of television advertising with “BLISS WEEKS” with purchase of 5 Packs of 1 EUR in a raffle on 100 times 5000 EUR participate: Allowed and not wiettbewerbswidirg

The inter alia for the Competition Law responsible I. Civil Division of the Federal Court today ruled on a television advertisement for a lottery, could participate in the only buyer, who had purchased the advertised product previously.

The parties are manufacturers of licorice and jelly. The defendant recruited from February 2011 on television with “BLISS WEEKS”. Buyer of five packs for the price of about per 1 € and submission of receipts was a chance, At a raffle of a 100 “Goldbärenbarren” each worth 5.000 To win €. The advertisement of TV presenter Thomas Gottschalk met at the supermarket on two families with children.

The applicant claims that the advertisement for anti-competitive, because they are exploiting the business inexperience of children and young people. It has therefore taken the defendant to cease and desist.

The lawsuit had success in the lower courts. After the Court of Appeal, the raffle coupling due to the circumstances of the case an unfair commercial practice is. This is the more stringent standard of care of § 3 Abs. 2 Sentence 3 UWG * to be based and must be based on the views of children and young people, which could be caused by the advertisement for a purchase on demand. The Federal Court of the Appeals judgment is quashed and dismissed the action.

Sweepstakes couplings can according to § 4 No.. 6 Be permitted in individual cases UWG **, if they violate the due professional care. According to the Federal Court of Justice considers applies to the assessment of the competition in dispute is not the standard of care of § 3 Abs. 2 Sentence 3 UWG, because the advertising complained of expected and predictable could not materially influence the economic behavior of children and adolescents alone. The defendant's products are popular with children and adults. A coupled to the sales of these products Sweepstakes is therefore suitable to predict, to influence the purchasing behavior of adults. Therefore, for the assessment of the dispute the understanding of an average consumer significantly.

On this basis, the television advertising is not contrary to professional diligence. The cost of raffle participation will be significantly. There are no incorrect odds suggests.

The TV spot on the defendant does not violate the special protection of children and young people serving rules of competition law. It contains no direct solicitation of children (No.. 28 the Annex to § 3 Abs. 3 UWG). He is also not suitable, exploit the commercial inexperience of minors unfair advantage (§ 4 No.. 2 UWG).

Judgment of 12. December 2013 – I ZR 192/12 – BLISS WEEKS

LG Köln – Judgment of 8. February 2012 – 84 The 215/11

OLG Cologne – Judgment of 21. September 2012 – 6 You 53/12,

GRUR-RR 2013, 168 = WRP 2013, 92

Karlsruhe, the 12. December 2013

*§ 3 UWG is:

(2) Business-to-consumer actions are in any case inadmissible, if they are not in accordance with the rules applicable to the business professional care and suitable, the ability of the consumer, to decide on the basis of information, noticeably impaired and to cause him to take a transactional decision that, that he would not have taken otherwise. This is the average consumer or, if the business action directed to a particular group of consumers, taken of an average member of that group. In the view of the average member of a due to mental or physical infirmity, Age or credulity vulnerable and clearly identifiable group of consumers is turn off, is predictable if the entrepreneur, that its business conduct concerns only this group.

** § 4 UWG is

6.Act of unfair competition in particular, who makes the participation of consumers in a prize competition or lottery conditional on the purchase of goods or use of services, unless, the prize competition or lottery is inherently linked to the goods or services;

Those:BGH

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