12 May 2023
Co-Author: My Anh Cao
In its decision of 26 July 2022 (I-12 O 17/22, GRUR-RS 2022, 36429), the Regional Court of Bochum had to deal with the question of whether a raffle advertising a free hearing test violates the prohibition of Section 7 of the German Law on the Advertising of Medicinal Products (HWG). The court affirmed this on the grounds that such a raffle was at least associated with the abstract danger of an unobjective influence on the addressee of the advertising. However, the court chamber itself emphasised that it had “not found the decision easy”.
The plaintiff in the case is an association dealing with unfair commercial practices and the defendant is a company from the hearing acoustics sector, which advertised on the internet for free hearing tests to be carried out with simultaneous participation in a raffle. The plaintiff considered this advertisement to be a violation of Section 7 of the HWG. The plaintiff argued that the advertisement referred directly to the hearing tests carried out by the defendant, with which reduced hearing and physical damage could be diagnosed, eliminated or alleviated. In the opinion of the plaintiff, there was a risk that consumers would be deterred from seeing a doctor by the prospect of winning. The defendant opposed this and argued that Section 7 HWG did not apply because there was no sales advertising and the abstract danger of an unobjective influence on the addressee of the advertising could not be justified. The public perceived the offers as a service and not as an offer of a monetary benefit.
In its decision, the Regional Court of Bochum came to the conclusion that the challenged advertising was indeed inadmissible according to Section 7 HWG. The term “advertising gift” also had to be restricted in advertising to the general public. Accordingly, an advertising gift was found to exist if it created at least the abstract danger of an unobjective influence on the addressee of the advertisement. Taking into account the protective purpose of the German Law on the Advertising of Medicinal Products, the existence of an abstract danger should not be subject to particularly high requirements. It was sufficient that at least in some constellations there was an abstract danger of unobjective influence. Such a danger could have been assumed in the present case, since the prospect of the prize offered could entice a customer to visit a shop of the defendant first instead of going to an ear, nose and throat specialist. This was particularly dangerous in the case of conditions of the ear requiring immediate treatment, such as a sudden loss of hearing.
by Dr. Daniel Tietjen and Dr. David Klein, LL.M. (Univ. of Washington), CIPP/E