作者

Dr. Daniel Tietjen

合伙人

Read More

Ennio Schwind, LL.M. Eur.

律师

Read More
作者

Dr. Daniel Tietjen

合伙人

Read More

Ennio Schwind, LL.M. Eur.

律师

Read More

2023年5月12日

Regional Court of Bochum decides on the advertising of a free hearing test with a raffle

  • Quick read

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.

Call To Action Arrow Image

Latest insights in your inbox

Subscribe to newsletters on topics relevant to you.

Subscribe
Subscribe

Related Insights

专利与创新

Higher Administrative Court of Münster: Subsequent authorization of a homeopathic medicinal product

2023年12月19日
Briefing

作者 Dr. Daniel Tietjen 以及 Katharina Hölle

点击此处了解更多
酒店与休闲

Regional Court of Hamburg: Misleading advertising for therapeutic allergens with profitability

2023年10月12日
Quick read

作者 Dr. Daniel Tietjen 以及 Katharina Hölle

点击此处了解更多

Draft of a cannabis law for the further legalisation of cannabis in Germany

2023年9月27日

作者 Dr. Daniel Tietjen 以及 Ennio Schwind, LL.M. Eur.

点击此处了解更多