In advertising with price discounts, special offers and vouchers, asterisk references can refer to the conditions that usually restrict the offer. The Freiburg Regional Court had to decide on the anti-competitive nature of an advertisement in which an asterisk reference was made, but the consumer first had to search for the corresponding footnote.
The subject of the legal dispute is claims for injunctive relief under competition law by a competition association that objected to the print advertising of a retailer. The retailer had advertised in the form of a flap, which was placed around the outside of the front page of a daily newspaper as an advertising envelope. The association complained that the advertising campaign
"19% VAT free*"
although it contains an asterisk reference, this reference is not resolved on the same page, but on the reverse of the double-sided advertising cover.
The retailer considered its advertising to be lawful and did not issue a cease-and-desist declaration. An attentive consumer would recognize the asterisk in the eye-catching advertisement and then also notice the resolution of the footnote, even if it was not placed on the same page as the advertisement.
Decision of the court
The Freiburg Regional Court ruled in its judgment of 23.02.2015 - Ref. 12 O 105/14that an asterisk reference on the same page must be resolved.
In particular, anyone who does not clearly and unambiguously state the conditions for taking advantage of sales promotions such as discounts, bonuses or gifts is acting unfairly and therefore anti-competitively. This was not the case here.
Furthermore, there were no reasons inherent in the media for not dissolving the asterisk reference on the same page, so that there was no exception.
Conclusion
The average consumer assumes that footnotes and notices are on the same page. Consumers cannot be expected to search for the conditions first.
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