According to its press release, the German Federal High Court (“BGH”) decided on 12 December 2013 (1 ZR 192/12) that Haribo was allowed to advertise raffles in which only customers who bought specific products were allowed to participate. Moreover, the BGH held the respective TV commercial to be legal as it did not merely address children and adolescents but “the average consumer”.
This decision is noteworthy as on the one hand it rescinds the idea that the German Act against Unfair Competition (“UWG”) generally prohibits a linkage between the purchase of goods and services and the participation in a price game or raffle. On the other hand, the BGH clarifies the scope of application of the so called “black list” – an annex to the UCP-Directive which was implemented as an annex into the UWG – that contains commercial practices which are deemed to be “per se” unfair.
In consequence of the decision, the BGH grants competitors on the market a greater freedom to create commercial campaigns especially with respect to prize games and raffles.
The facts of the case were as follows:
In February 2011, the German confectioner Haribo had TV commercials broadcasted which advertised a raffle in which customers could participate if they bought five packages at a price of approximately 1 EURO and sent in the receipts to Haribo. The customers then had the chance to win one of 100 gold bars worth EURO 5,000 each. In the commercial the – in Germany well-known – TV presenter Thomas Gottschalk acted together with two families with children.
The plaintiff Katjes – a competitor of Haribo – argued that the commercial infringed the UWG as it was suited to exploitation of children’s and adolescents’ age and commercial inexperience and claimed for cease and desist.
The previous instances granted the claim. They argued that the commercial constituted – according the circumstances of the particular case – an unfair commercial practice. Haribo would be under a strict obligation to exercise due care and it would have to assess the commercial from the perspective of children and adolescents, who might be induced by the commercial to buy more products than they would otherwise.
The BGH has now annulled these prior decisions and rejected the plaintiff’s claim. It reasoned that the commercial fairness must be assessed from the perspective of the average consumer as the defendant’s products were also popular amongst adults and the commercial would hence be able to affect not only children and adolescents, but also the buying behaviour of adults.
As a result, Haribo’s did not infringe its duty of care under the UWG as the costs of the participation in the raffle were clearly stated and the winning chances were indicated correctly. Moreover, the TV commercial did – pursuant to the BGH – not infringe UWG provisions on the protection of minors. The court held that the commercial did not directly exhort children to purchase the goods marketed, nor was it suitable to exploit the children’s and adolescents’ age and commercial inexperience.
The BGH’s decision is another step to overcome the strict ban of a linkage between a consumer’s purchase and his/her participation in a raffle. This ban is expressly stipulated in the UWG. However, as the respective provision infringes the EU UCP-Directive it must – according to an earlier BGH decision (I ZR 4/06, dated 5.10.2010) – be interpreted in line with the UCP-Directive. The BGH’s present decision concurs with this approach and enforces valid EU law. Its effect is a greater commercial freedom with respect to commercial campaigns. Moreover, the BGH addresses – as far as can be seen for the first time – in detail whether and under which conditions a raffle which links the participation to the purchase of goods targets at children. The final grounds of the decisions will thus likely reveal information on the court’s interpretation of the black list and further UWG provisions on the protection of minors.