In business life it is common to receive letters the advertising character of which only reveals after a closer look. At first sight the reader gets the impression that the letter refers to an existing contract or an already ordered service. In the field of intellectual property standard form offers of this type often refer to the renewal of intellectual property rights. This is particularly annoying if the letter has an official appearance at first sight.
The Federal Court of Justice has addressed the issue in a case in which the standard letter offered entry of business data into a mercantile directory comparable to Yellow Pages (Decision of June 30, 2011 – I ZR 157/10 – Branchenbuch Berg). By the appearance of the letter the cursory reader could get the impression that the letter referred to an update of an already existing entry.
As a general rule, advertising material has to be interpreted based on the understanding of a reasonably observant and understanding market participant. The senders of the standard form offers had referred to this general rule and pointed out in the proceedings that business people generally pay increased intention to individually addressed business letters. In consequence, they will easily understand the true nature of the letter.
The Federal Court of Justice did not share this view. Rather, as the Court set out, letters of supposedly little significance in business life are handled with little attention. If read with little attention it is to be expected that a part of the addressed persons is mislead about the true content of the letter. The standard form offer is designed with a purposive and systematic intention to take advantage of the receiver’s non-attention. The Federal Court of Justice thus ruled that the standard form letter in question contravenes the Law against Unfair Competition (§ 4 Nr. 3 UWG and § 5 Abs. 1 UWG).