If an opening advertising combined with a crossed-out price, so there is an implied misrepresentation, namely the indication of a price advantage within the meaning of § 5 Abs. 1 Sentence 2 No.. 2 UWG, however not the withholding of essential information within the meaning of § 4 No.. 4 oder des § 5a Abs. 2 UWG, as it may be with the application of a non-temporary "introduction price" of the case

If an opening advertising combined with a crossed-out price, so there is an implied misrepresentation, namely the indication of a price advantage within the meaning of § 5 Abs. 1 Sentence 2 No.. 2 UWG, however not the withholding of essential information within the meaning of § 4 No.. 4 oder des § 5a Abs. 2 UWG, as it may be with the application of a non-temporary "introduction price" of the case (BGH GRUR 2011, 1151).
30b) The group of reasonably well-informed, observant and critical average consumer, to the furniture in the area of ​​application of the members of the Senate are recognized, understands the juxtaposition of an opening advertised- with a crossed higher price than the vendor price reduction advertising (Fezer / Peifer, UWG, 2. Divide. 2010, § 5 Rn. 422) and therefore as an indication of a price advantage within the meaning of § 5 Abs. 1 Sentence 2 No.. 2 UWG. Not clearly explained in an eye-catching crossed out price is the addressee of the effect, that the provider itself deviates from the crossed out price.

OLG Hamm, 4 You 129/12 from 10.01.2013 -
Landgericht Bochum, 13 The 65/12

The appeal by the defendant against the 30. More 2012 announced the verdict 13. Civil Chamber - Chamber for Commercial Matters – the Landgericht Bochum is rejected on the basis, provided that the decision regarding the request to 2. is upheld on, that it is in the ban tenor behind, "actually called in low prices": "As the opening prices".

The costs of the appeal, the defendant bears.

The judgment is provisionally enforceable.

Reasons:
I.
The defendant is part of a group, which operates in several cities Furniture Stores, a separate legal entity, in March 2012 has opened a furniture store in I. In connection with this opening, she campaigned in a supplement to the X-message from 6.3.2012 for different furniture, Mattresses, Household goods, Carpets, Lights etc. each with "opening price", which partially crossed out prices were higher compared with. On the first page of the brochure was in a yellow box at the predominantly red and black overprint "Unna, Bielefeld, Delmenhorst and celebrate with Oelde ". At each double page is located in the lower part, and together with other explanations of the words "The painted rates correspond to the former selling prices in the Y-living center or shop online at www.Y.de". For the details of the system is to A1 Bl. 11ff. and Bl. 23 pointed.
At the request of the applicant, to its statutory responsibilities to monitor compliance with the rules of fair competition is, the district court, by order of 2.4.2012 (Bl. 58) forbidden by way of interlocutory injunction the defendant,
in trade
1. To advertise with the eye-catching image of a regular bed - for example in a room furnishing - which is fitted up to bedding and to call this an eye-catching one price, of only the empty bed Placed includes,
accordance with the Prospectus "NEW Opening - Gigantic living environments now also in I", Pages 2/3 - A Anlage 1,
2. for furniture, Household goods, Mattresses, Carpets, Lights and / or furnishings to advertise underlined by higher and actually demanded lower prices,
when this happens, as in the brochure "NEW Opening - Gigantic living environments now also in I" - Appendix A 1.
The defendant from pleading with 10.5.2012 concerning paragraph 1 the injunction issued a final declaration (Bl. 70) and concerning point 2 Inserted part of contradiction.
The applicant has held advertising with crossed for misleading prices, because it did not exist when the defendant suggested by the crossed out price cut prices. This rather have just opened their business as a separate company until, so that the alleged opening constituted normal prices. On the prices demanded earlier by other companies of the group can not depend. Therefore, the defendant mistaken about the existence of a specific price advantage and the kind of pricing contrary to § 5 Abs. 1 Sentence 2 No.. 2 UWG. This deception is not sufficiently resolved by the asterisk notes and it could not be, because it sucked to be. "Brazen lies" the principal, for there is no reasonable cause and their falsehood in eye-catching principle can not be resolved by asterisks Notes.
12The applicant has recently applied,
13the injunction to point. 2 to confirm the ban Tenors.
14The defendant sought,
15the injunction from the Landgericht Bochum 2.4.2012 regarding Section. 2 repeal of the ban on tenor and the application to point. I 2 the applicant for an injunction from the 30.3.2012 dismissed with costs.
16The defendant meant, the advertising at issue is not misleading, because'll explain on each double page of the prospectus by asterisks Note, what the matter raised by the crossed prices. In addition, the addressee'm in advertising from a opening price of one low price, the in any event lower than the regularly required and future price. It was true, the consumer, the purchases in the store the defendant in I, no price advantage to the consumer have, who was in one of the other branches of the respondent customer. But it was important not, whether the occasion of the opening of a new branch there was a price advantage over the existing branches, but it, whether an actually existing price advantage will not feigned. But this advantage admit it. In addition, the consumer is already revealed on the front page, that the other branches would celebrate the re-opening of business in I. The crossed-out prices were also required before the joint action in the other branches longer than one month. It is competitive unobjectionable, advertise with former selling prices of other companies.
17The district court confirmed the decision available also in terms of the impugned ban. It has kept the injunction for reasons, because do not have a price advantage by opening price, but'll deceived about the fact, that led through a separate legal entity branch in I've asked a normal price for the advertised goods at all before the opening. The deception is not excluded by, am informed that in the brochure about, offer that the other already existing branches Herner opening price. In particular, the addressee will not clearly indicate this by noting, that the advertised opening of the respondent for the independent companies in Unna, Bielefeld, Delmenhorst and apply Oelde.
18Against this judgment, the appeal of the respondent is directed. She says, still disputed advertising is not deceptive, in any case not noticeable competitive. The deception is lacking, because the addressee will drawn by an asterisk noting, that the one who was crossed out price, would have required the resolution specified in the notice of branches as well as the online store of the group. The average consumer do not have to worry about it, whether and to what extent the company of a group of legally independent or dependent branches are. In any event, the advertising claim no adverse consequences for the economic decisions of the advertising addressees, because it will not actually promised not granted advantage.
19The defendant sought,
20by using a modification of the judgment of the Landgericht Bochum 30.5.2012 ‑ I-13 O 65/12 - The request for a preliminary injunction from the 30.3.2012 dismissed.
21The applicant is applying,
22dismiss the appeal with the apparent tenor of the provisions.
23He defended the impugned judgment and thinks, the indication, who had just caused a great advertising, was already therefore relevant, because here there is the determination of a contractor, were compared with the warranty claims to be asserted.
24II. Reasons
25The appeal is allowed unfounded. The injunction is to be maintained in the form requested last. The applicant may request the defendant in the way of interlocutory injunction is still disputed advertising under § § 8 Abs. 1, 5 Abs. 1 Sentence 2, 3 Require UWG.
261. The application for an injunction is in the form most recently applied sufficiently determined in accordance with § 253 Abs. 2 No.. 2 ZPO. The actual brochure advertising the defendant is - unlike in the case of "Original K" (BGH GRUR 2011, 1151) Not as such be the subject of the ban -. As part of the contradiction is, were the parties and the district court of two different argument objects from. It was not about the allegation of an unclear promotion measures within the meaning of § 4 No.. 4 UWG or a misleading omission under § 5a Abs. 2 UWG, but an implied deception within the meaning of § 5 Abs. 1 Sentence 2 UWG, which refers precisely to the fact, that not having any, but was just advertised "opening price". This fact is evident in the prohibition applied to the last expression.
272. Against the urgency of the application, by § 12 Abs. 2 UWG is suspected, There are no concerns, because the decision on disposal within a period of one month from the publication of the brochure advertising 6. March 2012 was adopted.
283. The available claim arises from § § 8 Abs. 1, Abs. 3 No.. 2; 3; 5 Abs. 1 Sentence 2 No.. 2 UWG.
29a) If an opening advertising combined with a crossed-out price, so there is an implied misrepresentation, namely the indication of a price advantage within the meaning of § 5 Abs. 1 Sentence 2 No.. 2 UWG, however not the withholding of essential information within the meaning of § 4 No.. 4 oder des § 5a Abs. 2 UWG, as it may be with the application of a non-temporary "introduction price" of the case (BGH GRUR 2011, 1151).
30b) The group of reasonably well-informed, observant and critical average consumer, to the furniture in the area of ​​application of the members of the Senate are recognized, understands the juxtaposition of an opening advertised- with a crossed higher price than the vendor price reduction advertising (Fezer / Peifer, UWG, 2. Divide. 2010, § 5 Rn. 422) and therefore as an indication of a price advantage within the meaning of § 5 Abs. 1 Sentence 2 No.. 2 UWG. Not clearly explained in an eye-catching crossed out price is the addressee of the effect, that the provider itself deviates from the crossed out price.
31Is not always necessary, that the duration of the special award is limited. Also an exposed in advertising introductory price need not always a time limit, while the offer lasts not less than the equivalent consumer expectation (BGH GRUR 2011, 1151 Tz. 21; with reference to Köhler / Bornkamm, UWG, 29. Ed, § 5 Rn. 7.114; Piper / Ohly / Sosnitza, UWG, 5. Ed, § 5 Rn. 436). The addressee understands the advertising present but not to the effect, indicated that the higher price is to represent those price, will have a permanent after an opening phase of the business as a normal price. Of such a possible traffic understanding the Supreme Court, although in the case of "Original K" assumed (Wheat 2011, 1151 Tz. 21). But It was about the advertising for an introductory price. It can be understood differently than advertising with a opening price (vgl. Piper / Ohly / Sosnitza, UWG, 5. Divide. § 5 Rn. 436, 437). When advertising with an opening price of a new company in the market occurring, there are no previously existing business. It's not even a spillage of new to market product or range, that is sold with a lower price, to present it to the consumer. With the combination of an opening price with a crossed-out price, it is therefore far, that the crossed-out price will already be the future standard price. Regardless, the present dispute, that the subject of the comparison of the future just not normal- and the opening prices were.
32c) The consumer perception described in the present case corresponded to reality, because a price reduction has not actually taken place. At the opening price of an independent company, as it represents the defendant, can basically no price advantage in terms of price reductions, because there is no previous prices, which were actually advocates for a certain period, can give. The price mentioned is Erstpreis, Price slashed the other hand, one never even been requested by the advertiser Price. The fact, that the crossed-out prices were demanded by other businesses, does not help get over, that the advertiser has its own price is not lowered, therefore does not change the misconception. It does not change anything, if the other companies in the group, belongs to the advertiser, reduce their normal price to the same extent. Even then, it remains a deception of that addressees, who wants to gain clarity on the price situation in the advertising company.
33d) It can be set aside, whether the misconception could have eliminated here by an asterisk sufficient notice. Speaking against, that according to the jurisprudence of the explanatory note is not sufficient, if it is not explained only, but corrects an incorrect statement in eye catching himself only (BGH GRUR 2001, 78, 79 - Incorrect recommended retail price, OLG Frankfurt, NJOZ 2008, 3508, 3510). Moreover, it is not enough, Note that the corrective is found in a clearly and unambiguously indicated location in an extensive advertising brochure, because the assignment to the eye-catcher must be clear and unambiguous, be so from the eye-catching himself clearly recognizable (BGH GRUR 1990, 1027, 1028 – incl. VAT. I; BGHZ 139, 368, 376 = Grain 1999, 264 - Handy for 0,00 DM; BGH GRUR 2000, 911, 913 - Computer Advertisement I; BGH GRUR 2003, 163, 164 - Computer Advertising II). In this case, the asterisk already missing at the respective prices faced. In addition, that with the eye-catching advertising in any case standing in the eye-catching claim may itself not be inaccurate. However, here it is. Anyone in the market for the first time as occurring independent contractor advertises an opening price, he faces a higher price crossed, advertises a false indication.
34and) The deception is also relevant for the consumer decision. This is already talking about the high luring an opening price, which is associated with a reduction in the price and is not isolated to. Moreover, the unfair competition law prohibits untrue statements, violate the law of truth and obviously difficult, although the incorrect statement without trouble could have been avoided (BGH GRUR 2001, 78, 79 - Incorrect recommended retail price; Fezer / Peifer, § 5 Rn. 234). Would you permit such advertising behavior especially with the price comparison, one would not justify the far-off danger, that in the advertising market unenforceable astronomical prices could be given as a comparison prices, which would have the function alone, to deceive the opening of special value for money (BGH GRUR 2011, 1151 Tz. 22; Fezer / Peifer, § 5 Rn. 451).
35f) Misleading statements are always competitively relevant, whether, that § 5 Abs. 1 Sentence 2 UWG vertypten constitute a case of unfairness (BGH this GRUR 2009, 888 Tz. 18 – Thermoroll), whether, that advertising is competitive noticeable in a newspaper supplement considerable attention because of the effect of the advertising medium.
36III.
37The adverse decisions arising from § § 97 Abs. 1, 708 No.. 10 ZPO.

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