In a ruling dated 25 July 2023 (case no.: 102 O 121/22), the Berlin District Court prohibited advertising for a hearing aid in which the "invisibility" of the hearing aid was advertised. court considered the advertising to be misleading and therefore inadmissible, as the statements made gave the impression that the hearing aid was actually invisible in the sense of "imperceptible to outsiders".
The plaintiff is a registered competition association. The defendant is a company founded in 2012 that sells hearing aids via the internet. The defendant's devices are customised to the individual needs of the customers at the defendant's local partner audiologists after prior selection by the customers on the defendant's website.
The defendant advertised one of the models it sold as "invisible" on its website and in its advertising materials. The plaintiff was of the opinion that this advertising statement was misleading and unfair. The device's retrieval system was clearly visible from a distance of 0.5 to 1 metre and should therefore only have been advertised as "almost" invisible. This applies in particular in view of the fact that there are actually (completely) invisible hearing aids and such exaggerations in adverts are not common practice. The defendant, on the other hand, was of the opinion that the requirements for the public's perception should not be overstretched and that other companies would also advertise comparable devices identically. The advertising was therefore common in the industry and not objectionable.
In its ruling of 25 July 2023, the Berlin Regional Court ruled in favour of the plaintiff and classified the defendant's advertising statements as misleading within the meaning of Section 5 UWG and therefore inadmissible. The statement that the hearing aid was "invisible" without any restrictions gave the impression that the device was completely invisible. While the string of the device remains largely inconspicuous due to the transparent plastic design, the retrieval system in the pinna is visible from the outside even when fully inserted into the ear canal. Whether this was the case for normal everyday situations or only for unfavourable viewing angles was irrelevant, as the advertising claim regarding invisibility always applied and did not have to depend on any unfavourable circumstances. The court considered it unrealistic that a significant proportion of the hearing aid market would differentiate between the visibility of the actual device and the retrieval system. This could only have been the case if the defendant had given restrictive instructions.
Furthermore, it cannot be assumed that the hearing aid public has become used to advertising exaggerations regarding the "invisibility" of in-ear hearing aids and therefore expects that they are not actually invisible. In contrast to purchases on site, it is also not immediately apparent when purchasing via the internet whether and to what extent the hearing aid is actually externally perceptible, so that the buyer must rely to a greater extent on the retailer's statements. The statement at issue is inadmissible in this respect.
