The defendant in this case was the optician’s having a network of salons nationwide. In the distributed leaflets, there was information about discount offer for glasses to which another pair of glasses to the value of EUR 89 was added. The action for stopping the use of such marketing methods due to unlawfulness thereof was bought in by the Central Office for combating unfair competition.
The courts of both instances acknowledged that promotional campaign of the optician’s was an unlawful offer of additional benefits in exchange for the purchase of a medicinal product within the meaning of §7 section 1 sentence 1 of the Act on advertising of medicinal products.
In accordance with this provision, offering, promising or granting additional benefits or gifts (in the form of products or services) is unlawful unless the benefit consists in increased quantity of the same product.
However, the advertisement of the defendant did not concern a package of two products of the same type offered together but directly promised a gift in the form of another pair when one pair of glasses is purchased.
The above opinion was also shared by the Federal Tribunal of Justice who dismissed cassation appeal of the Defendant. In the opinion of the Tribunal, recognition of the advertisement as unlawful was determined by the fact of graphically highlighted information that another pair of glasses was added gratis. In such situation there is a risk that a consumer will decide to purchase the glasses at a discount price with the establishment of the defendant only considering the gift offered and not due to properties of the medicinal product which corrective glasses are.
- Judgment of the Federal Tribunal of Justice of 6 November 2014, file ref I ZR 26/13