On the use of asterisks in advertising

The Higher Regional Court in Karlsruhe in its judgment of 17.07.2015 (case no. 4 U 49/15) confirmed that the use of asterisks in printed advertisement can violate competition law if the explanation to which the asterisk links is to be found on a previous page. Furthermore, competition law could be infringed if, for further details of an offer, a reference to a website was made. According to the Higher Regional Court in Karlsruhe, references with such “media disruption”, as e.g. in the case of a reference to an Internet source made in a printed catalogue, are admissible only in exceptional cases.

In the given case the defendant, a furniture retailer, published its advertisement in a multi-page newspaper advertisement in which he included a statement „19% VAT discount” followed by an asterisk. The footnote to which the asterisk referred was printed two pages before and read as follows: „Detailed conditions and selected suppliers can be found online at [Internet address]”. On the website, consumers were informed of the cases in which the sales promotion did not apply. For instance, all offers published in the latest brochures and announcements of the defendant were excluded from the scope of the sales promotion. The plaintiff (the German Agency to Combat Unfair Competition, Wettbewerbszentrale) sought injunctive relief. The Regional Court in Freiburg held that the advertising in question constituted an infringement of German competition law (judgement of 23.02.2015, case no. 12 O 105/14). The Higher Regional Court in Karlsruhe now followed this decision.

In its judgement the Higher Regional Court in Karlsruhe explains that pursuant to sec. 4 No. 4 of the German Act Against Unfair Competition sales promotions are allowed only if their conditions are stated clearly and unambiguously. Furthermore, the provision of sec. 6 para. 1 No. 3 of the German Telemedia Act obliged a service provider to make the terms and conditions of sales promotions easily accessible and to formulate them clearly and unambiguously. According to the Court, these requirements have be read into sec. 4 No. 4 of the German Act Against Unfair Competition. Although this did not mean that an asterisk and the corresponding footnote had to be printed on the same page, the furniture retailer’s advertisement did not fulfil the requirement of transparency. The Court found that the footnote was not easily accessible because consumers had to return to the beginning of the advertising supplement in order to read the footnote. This was surprising for a consumer who would rather expect to flick through the next pages and find the explanation there.

Further, the Higher Regional Court in Karlsruhe underlined that, pursuant to sec. 4 No. 4 of the German Act Against Unfair Competition, all necessary information pertaining to the terms and conditions of sales promotions had to be provided to consumers already in the advertisement itself. In the given case a reference to a website was inadmissible. The admissibility of a “media disruption” generally depended on the type of media used or on the space available. In case of advertising via a medium such as “television” it could be adequate to make a reference to a source that is easily accessible, such as the Internet. The same could apply if in a particular advertisement there was not enough space for any “small print”. The given case, however, did not fall within these categories. The furniture retailer would have been able to include all detailed explanations already in the advertisement by adding “small print”.

When using asterisks with regard to sales promotion it is still necessary to examine closely all explanations to which the asterisks refer and any references to other media made. Ideally, explanations should be printed on the same page or at least on one of the following pages. A reference to a website on the Internet is admissible only in exceptional cases.