In the opinion of the Higher Regional Court, the description on the button for ordering a gratuitous trial subscription to the Amazon-Prime service – “Now test for free – later for a fee” is misleading and violates the rules of fair competition.
Customers of Amazon had the possibility of ordering in test version one-month access to the Amazon-Prime service of streaming. However, the trial subscription did not expire after the month but transformed itself into a payable subscription if the agreement has not been earlier terminated.
An action against Amazon for stopping the use of a misleading message was brought by the Federal Union of Consumer Organizations. Having heard the appeal, the Higher Regional Court recognized that the description of the order button must be replaced with the phrase “I order and undertake to pay” or another more explicit expression. For the ambiguous expression used by Amazon constitutes a violation of § 312j section 3 of BGB whereby an entrepreneur must in a clear and visible way inform a consumer about chargeable nature of the agreement, and a consumer, at the moment of placing an order, must explicitly confirm that he/she knows that the order results in an obligation to pay.
The Court recognized that art 312j section 3 of BGB is applicable to every agreement which is of chargeable nature. In case of Amazon-Prime, even if the first 30 days of using the service are gratuitous, together with the conclusion of an agreement there is a direct obligation to pay which ceases only when a consumer takes another active step and terminates the agreement. The fact that it is easily possible directly after the agreement has been concluded does not change the nature of the legal transaction as chargeable to a consumer.
The expression used by Amazon in the first place created the risk of misleading a consumer and in the second place made a consumer be convinced that he/she was ordering only a gratuitous trial subscription for a month, and the offer was available “now” only.
- judgment of the Higher Regional Court in Koeln, of 3rd February 2016, file ref No. 6 U 39/15