Under the old §3 UWG a commercial practice was found misleading if ‘a not inconsiderable section’ of the consumers at which the commercial practice was aimed were believed to be misled.¹⁸ In some cases this was measured with the use of consumer opinion polls.¹⁹ However, in most cases the German Courts determined the misleading nature of the commercial practice not on the basis of empirical evidence, but on the basis of their own assessment of the commercial practice.

In this context and until the mid-1990s, the Bundesgerichtshof consistently applied the benchmark of what it usually referred to as the flüchtigen und unkritischen Durchschnittsverbraucher, i.e., the casually observing and uncritical average consumer, often described in short as the flüchtigen Durchschnittsverbraucher or flüchtigen Verbraucher.²⁰ The image of the flüchtigen und unkritischen Durchschnittsverbraucher was meant to be realistic in the sense that it was the characterisation of the behaviour of the consumer as expected by the BGH, without it reflecting how the consumer should behave. In this sense the benchmark of the flüchtigen Verbraucher was also contrasted in literature to the European benchmark that emerged out of the CJEUs cases such as Cassis de Dijon and Mars, which was thought to reflect desired rather than actual behaviour and which was often characterised as the verständige Verbraucher, i.e., the circumspect consumer.²¹

The benchmark of the flüchtigen Durchschnittsverbraucher led to criticism, perhaps most famously and strongly expressed in the context of the Prantl case before the CJEU in 1984. The defendant in that case described the consumer taken as the benchmark in German law as an ‘image of an infantile, almost pathologically stupid and negligently inattentive average consumer’.²² Similar voices could be heard in legal literature.²³

In order to understand the old German consumer benchmark, it is important to appreciate the context in which it functioned. The German courts showed an overall strict attitude towards unfair competition and in this sense had a reputation for being considerably less liberal than many other Member States.²⁴ For example, advertising was sometimes found to be misleading as soon as the attention of the consumer was drawn in a misleading way, so that even limited influence on the consumer’s behaviour was sufficient for a prohibition.²⁵ Moreover, as mentioned above, advertising was found misleading as soon as ‘a not inconsiderable section’ of the public was thought to be misled.²⁶ While the not particularly high expectations of the behaviour of the average consumer contributed to the strict application of the UWG, it must thus be noted that the consumer benchmark was just one aspect that ensured that the UWG strongly interfered with potentially unfair commercial practices.²⁷

In its case law prior to the adoption of the average consumer benchmark, the BGH made clear that it was not to be expected of the consumer, when reading an advertising slogan, that he or she would read the message precisely, comprehensively and critically.²⁸ The consumer was expected to observe the information only superficially and was not assumed to extensively reflect upon what he or she had read.²⁹ The following paragraph from the Steinhäger case (1956), dealing with a product name potentially misleading consumers as to the place of origin of the product, shows how the BGH typically characterised the expected behaviour of the consumer:³⁰

DE Bei Prüfung der Frage, ob die beanstandeten Bezeichnungen der Bekl. unrichtig oder irreführend im Sinne des §3 UWG sind, ist nach ständiger Rechtsprechung nicht der Sinn maβgebend, den der Ankündigende mit dieser Ankündigung verbunden hat oder verbunden wissen will, entscheidend ist vielmehr die Auffassung des in Frage kommende Abnehmerkreise, wie sie sich bei der Flüchtigkeit, mit der der Verkehr derartige Bezeichnungen aufzunehmen pflegt, bildet. Das hat das BerG an sich auch nicht verkannt. Es hat dabei jedoch nicht berücksichtigt, daβ nach der Lebenserfahrung ein flüchtiger Betrachter einer solchen Ankündigung—Fachkenntnisse dürfen bei ihm nicht vorausgesetzt werden—grammatikalische Überlegungen der vom BerG erörterten Art nicht anstellen wird. Es darf nicht von einem Leser ausgegangen werden, der die Ankündigung genau, vollständig und mit kritischer Überlegung würdigt.

EN In answering the question whether the defendant’s designation contested by the plaintiff is false or misleading in the sense of §3 UWG, it is settled case law that not the meaning as understood by the trader or the meaning as intended by the advertiser is decisive. Rather, it is the meaning as understood by the customers at hand in their superficial observation, which is how customers tend to encounter these types of designations. This in itself has not been denied by the Court of Appeal. However, it did not sufficiently take into account that experience shows that a superficial observer of such a designation—who should not be assumed to have professional knowledge—will not reflect on the grammatical meaning to a degree as assumed by the Court of Appeal. One should not reason from the point of view of the reader who assesses an advertisement precisely, completely and critically.

This section clearly shows that the BGH expected the consumer to generally observe superficially and not to look critically at statements.³¹

Another good example of the consumer’s superficial observation and uncritical attitude is given by the Betonklinker case (1982).³² The defendant in this case sold construction products, one of them being marketed as ‘Betonklinker’ (‘Concrete Clinkers’). This product looked like a clinker (a type of brick), but was in fact made out of concrete. The plaintiff argued that the name was misleading, because the public would think that the product, apart from looking like a clinker, would also have the same qualities, while this was in fact not the case.

The BGH made clear that concrete and bricks are distinctly different products with different qualities, and that the public on the basis of the product name would attach the properties of clinkers to the product made out of concrete. These expectations were not taken away by the product information given in somewhat smaller (but still prominent) print, containing, for example, the remark that the product ‘combines the rustic look of a brick and the technical advantages of concrete’. According to the BGH, experience shows that the casually observing public often does not pay attention to the information apart from the main slogan.³³

Two clear assumptions of the consumer (or, as it is referred to in this case, the general public) arise from this case. Firstly, the attention of the public was assumed to be limited in the sense that the consumer was not expected to read all the information offered to him in an advertisement. A headline or slogan could be found misleading even if the further information given could have removed any misinterpretation. The BGH investigated product names, slogans or other eye-catching statements in isolation, i.e., independent from the further information. This was known as the concept of Blickfangwerbung and was a prominent feature of the case law of the BGH regarding §3 (old) UWG.³⁴

Secondly, the Betonklinker case is a clear example of the limited critical attitude expected of the consumer in the old case law. As in other cases of the BGH of that time, consumers were assumed to attach meaning to advertising claims rather easily.³⁵ In some of the cases the BGH explicitly characterised the consumer as being unbefangen, i.e., as having an open, unsuspecting attitude.³⁶ This was true not only for statements that were open to varying interpretations, such as the name Betonklinker, but also for slogans which were objectively true yet may have invoked false impressions. For example, the slogan ‘Der meistgekaufte der Welt’ (‘the most purchased in the world’) for electric shavers was found misleading, because the name was assumed to make a section of the public expect that the leading market position would also apply for Germany, while this was in fact not the case.³⁷

The BGH was especially reserved in attributing a critical attitude to consumers in the fields of environment-related and health-related advertising.³⁸ A prime example of this is the aus Altpapier case (1988).³⁹ The defendant, owner of a shop chain, promoted in its advertising and shop-windows toilet paper and paper towels named ‘Hygiene-Krepp’. The defendant promoted the products using the slogan ‘Hygiene-Krepp aus Altpapier ist umweltfreundlich. Denn die Verwendung von Altpapier schont unsere Baumbestände’ (‘Hygiene-Krepp made from recycled paper is environmentally friendly, because the use of recycled paper saves the forest’). Under the slogan, the icon of an environmental hallmark was displayed. An explanation of the hallmark was given in smaller print, making clear that it was being attributed to products that were environmentally friendly, sound and safe. The smaller print also explained that the hallmark was awarded because the product was made out of at least 51 % recycled paper, reduced the amount of waste and waste-water, saved the forest and saved fresh water and energy. The advertisement was accompanied by a picture of a wooden toilet in the countryside and displayed another slogan at the bottom, stating ‘Der Umwelt zuliebe’ (‘For the sake of the environment’).

The BGH pointed out that environment-related advertising, like health-related advertising, was to be judged particularly strictly.⁴⁰ Consumers were assumed to react particularly emotionally towards environment-related advertising because it concerns issues of health and the protection of the environment for future generations. This, together with the fact that consumers were believed to often have no clear understanding of claims such as ‘does not harm the environment’ or ‘environmentally friendly’, was assumed to make consumers particularly vulnerable to be misled.⁴¹ In its judgment the BGH made clear that on the basis of the advertisement for Hygiene-Krepp, the consumer would expect that the product is made entirely out of recycled paper. As the product only comprised 80 % recycled paper, the consumer was being misled. The explanation in smaller print did not negate the misleading nature of the advertisement, because consumers—even when buying the product—often would not read it.⁴²

Although the benchmark of the flüchtigen Verbraucher—in combination with the requirement that only a ‘not inconsiderable section of the public’ needed to be misled—already provided protection to most people in society, there are some examples of cases in which certain groups were seen as particularly vulnerable. In particular, this was the case for children and teenagers, whose exploitation was already specifically forbidden under the 1909 version of the UWG.⁴³ Moreover, in a number of cases children and teenagers were generally seen as incapable of dealing with sales promotions.⁴⁴ Also, there are some examples of cases in which the participants of organised excursions that include sales presentations, often elderly or housewives, were labelled as particularly vulnerable.⁴⁵ Finally, also people suffering from illness were under circumstances seen as a vulnerable group.⁴⁶ In Fachkrankenhaus (1988), the BGH noted that these consumers can be easily misled in their search for effective treatment of their disease.⁴⁷ Their assumed vulnerability thus concerned specific claims regarding treatment of their disease, rather than general vulnerability towards commercial practices.

Prior to the introduction of the average consumer benchmark, the BGH applied the benchmark of the flüchtigen Durchschnittsverbraucher . On the basis of the latter benchmark, the BGH expected the general public to observe only casually and not to be particularly critical towards advertising.⁴⁸ Advertising was judged on the basis of the consumer’s first impression, without the consumer being expected to overthink its content.⁴⁹ The expected consumer behaviour was based on the BGHs assumptions of actual consumer behaviour rather than on how the consumer should or could act. Together with other aspects of the UWG, this contributed to an overall strict approach to commercial practices, even leading to prohibitions of slightly ambiguous claims that are not very likely to be misunderstood by many consumers.⁵⁰ An even stricter assessment took place in the field of health-related and environment-related advertising, as consumers were assumed to react particularly emotionally towards these types of advertising and because they were not assumed to have a clear understanding of the claims in these fields. Finally, there was also room for additional protection for particularly vulnerable groups, although in general the protection of minorities was already covered by the benchmark of the flüchtigen Durchschnittsverbraucher. In general, the BGH showed a strict attitude towards potentially unfair commercial practices.

From the mid-1990s, the case law of the BGH began to show signs of change towards a more liberal application of the UWG.⁵¹ This development cannot be separated from the various judgments of the CJEU that clarified that the UWG and its application did not comply with the principle of the free movement of goods.⁵² One of the aspects of the necessary liberalisation of the UWG was the change of the consumer benchmark in the case law of the BGH. After a number of cases in which the BGH did not yet explicitly apply the average consumer benchmark, but which already indicated change,⁵³ the BGH in 1999 in Orient-Teppichmuster (discussed in more detail below) adopted the CJEUs average consumer benchmark. Since Orient-Teppichmuster, the BGH has consistently applied the average consumer benchmark in the context of the UWG.⁵⁴ The new benchmark was also explicitly mentioned in the 2004 UWG reform⁵⁵ and has been codified in the UWG in 2008 in the implementation process of the Unfair Commercial Practices Directive.⁵⁶ The benchmark of the average consumer is now applied throughout German unfair competition law, as well as in the law on pharmaceutical products, trademark law and foods law.⁵⁷

In Orient-Teppichmuster (1999) the BGH adopted the average consumer benchmark as the new benchmark applicable in German unfair competition law.⁵⁸ In its judgment, the BGH also elaborated upon the level of attention that the consumer pays to product information in advertising, providing its own interpretation of what behaviour is generally to be expected of the average consumer.

The Berufungsgericht agreed with the claimant that the advertising was misleading, arguing that the casually observing consumer does not notice that the products on the fourth page are not hand-woven, like the carpets advertised on the previous pages. The BGH, however, dismissed the claim and explicitly rejected the approach of the Berufungsgericht. The BGH made clear that the benchmark to be applied is not that of the casually observing consumer, but rather that of the averagely informed and critical consumer, whose level of attention depends on the situation at hand:

DE Der Grad der Aufmerksamkeit des durchschnittlich informierten und ver-ständigen Verbrauchers, auf dessen Verständnis es ankommt, ist abhängig von der jeweiligen Situation. Er wird vor allem von der Bedeutung der bewor-benen Waren oder Dienstleistungen für den angesprochenen Verbraucher ab-hängen und wird beispielsweise dort eher gering, d. h. flüchtig sein, wo es um den Erwerb geringwertiger Gegenstände des täglichen Bedarfs geht. […] Erst im Falle eines am Angebot einer bestimmten—nicht völlig gering-wertigen—Ware oder Dienst-leistung entweder von vorneherein bestehenden oder bei flüchtiger Durchsicht geweckten Interesses wird die Werbung mit größer-er Aufmerksamkeit wahr-genommen. Diese situationsadäquate Aufmerksam-keit des Durchschnittsverbrauchers ist für die Ermittlung des Verkehrs-verständnisses maßgebend. Mögliche Mißverständnisse flüchtiger oder uninteressierter Leser haben dabei zurückzutreten […].

EN The degree of attention of the averagely informed and circumspect consumer, the understanding of whom is ultimately decisive, is dependent on the situation at hand. It will most of all depend on the meaning of the goods or services advertised for the targeted consumers, and will for example be limited, i.e., superficial, if it concerns advertising for every-day goods of limited value. […] Only in the case of an interest in a specific—not completely low value—good or service that was either already existing or based on the superficial observation of an offer, the advertising is observed with greater attention. This situationally dependent attention of the average consumer is decisive for determining the understanding of the public. Accordingly, possible mis-understandings of superficial or uninterested readers should not prevail […].

Hence according to the BGH, the level of attention primarily depends on the relevance or value of the products or services for the consumers to whom the statement is directed. The consumer observes only casually if the advertising concerns low-value every-day products and the same applies if the consumer glances through advertising leaflets or advertising in newspapers. In contrast, the level of attention will be higher if the advertising concerns a specific offer of a product or service of considerable value. Moreover, the BGH emphasised that—although the consumer is not always assumed to be particularly attentive—the interest of the consumer who is less attentive than the average consumer is not protected.⁵⁹

According to the BGH, the average consumer interested in buying a carpet will not just superficially look at the products advertised, but will observe with a normal level of attention and will gather more information before buying the product. The advertising leaflet is, therefore, not misleading; the average consumer is expected to read the product information in smaller print and is thus expected to take note of the difference in the fabrics.

Although no reference is made to the CJEUs case law, it is clear that the BGH in this case adopted the CJEUs average consumer benchmark. It used the term Durchschnittsverbraucher (average consumer) rather than the flüchtigen Verbraucher (superficially observing consumer) or flüchtigen Durchschnittsverbraucher (superficially observing average consumer). In relation to the older case law, the judgment brought about a cautious, yet clear break with the past, ushering in a retreat from the flüchtigen Verbraucher and introducing the concept of the situationsadäquate Durchschnittsverbraucher .⁶⁰ Different from earlier case law, the level of attention was expected to be higher if the advertising concerns products of higher value and longer lifespan.⁶¹

Although the expectations of the average consumer’s behaviour are thus higher than under the old case law of the BGH, it is questionable whether the general assumption of situationsadäquate Aufmerksamkeit is in line with the case law of the CJEU. Köhler argues that the reasoning of the BGH is not in conflict with the interpretation of the average consumer by the CJEU as it merely specifies how the average consumer behaves.⁶² However, the European Commission in preparation of the Unfair Commercial Practices Directive mentioned Orient-Teppichmuster as an example in which a Member State fails to properly apply the average consumer benchmark.⁶³

If we look at the further case law of the BGH applying the average consumer benchmark, what is expected of the average consumer with its situationsadäquate Aufmerksamkeit? First of all, it is clear that the BGH has higher expectations of the average consumer’s behaviour than under the old case law. The concept of situationsadäquate Aufmerksamkeit entails that the average consumer is no longer seen as generally superficially observing and naïve.⁶⁴ In general, consumers are no longer assumed to always take advertising slogans literally⁶⁵ and to be easily pressured to take wrong decisions,⁶⁶ and are required to put more thought and effort into making a purchasing decision, at least if it concerns a product of considerable value.⁶⁷

This can be illustrated by the Handy für 0,00 DM judgment (1998), which was decided shortly before the formal adoption of the average consumer benchmark in Orient-Teppichmuster, but which already reflects the new line of thought of the BGH.⁶⁸

The case deals with a printed advertisement for a mobile phone, displaying a picture of the phone, the name of the network provider, additional information in small print and, most prominently, the price of the phone, being 0.00 Deutsche Mark (DM).⁶⁹ An asterisk had been placed alongside the price referring to an information box containing small print that made clear that the phone was available only in combination with a contract with the network provider. The information box also provided the prices for the network contract.

Before the case was brought before the BGH, the Berufungsgericht (Court of Appeal) judged the advertisement displaying the 0.00 DM price to be misleading. It argued that while some informed consumers may know that the deal is only available in combination with a mobile phone subscription, other (less-informed) consumers are not aware of this.⁷⁰

DE Da dem Publikum geläufig ist, daß Mobiltelefone einen nicht unerheblichen Wert haben und ein Kaufmann ein solches Gerät nicht ohne weiteres verschenkt, erkennt es auch, daß der Erwerb des Mobiltelefons letztlich mit den Gegenleistungen finanziert werden muß, die im Rahmen des Netzkartenvertrags zu erbringen sind. Dabei ist zu berücksichtigen, daß der Verkehr in der Werbung seit Jahren Angeboten begegnet, mit denen für den Abschluß eines Netzkartenvertrages bei gleichzeitigem Erwerb eines Mobil-telefons zu einem besonders günstig erscheinenden Preis geworben wird. Die Fülle derartiger Angebote macht dem Publikum deutlich, daß es nicht um das Verteilen von Geschenken, sondern nur um einen Anreiz zum Abschluß eines langfristigen Netzkartenvertrags geht.

EN Since the public is well aware that mobile phones are of not insignificant value and that a trader does not give away such a device for free, it also recognises that the acquisition of a mobile phone must ultimately be paid for with the obligations that are to be fulfilled as part of the network contract. In relation to that, it should be noted that the public of advertising is being confronted for years with offers that advertise for network contracts with the simultaneous purchase of a mobile phone at an apparently very low price. The abundance of such offers makes clear to the public that these offers are not about the distribution of gifts, but only about providing an incentive to conclude a long-term network contract.

Hence, because the public knows about these trade practices, it is assumed to be somewhat sceptical and not to take advertising slogans literally. This leads to the conclusion that as long as the prices for the phone subscription are provided in a clear manner, the advertising practice is permissible.⁷¹ The BGH applied the same rule in the almost identical Handy-Endpreis