25.10.2007  Geistiges Eigentum, Medien und Informationstechnologie • 

Online advertisements in Germany – what is permitted?

Online advertising – regardless of whether it is an advertisement on web pages or in emails – is a growing market. This medium is attractive especially due to the fact that the costs for such advertisements are minimal.

 

However, there are certain rules and limitations that one needs to be aware of:

 

In part, the German Unfair Trade Practices Act (Gesetz gegen den unlauteren Wettbewerb – “UWG”) which applies to both B2B as well as B2C advertising deals expressly with some kinds of online advertisements. Thus, anyone who unreasonably disturbs another market participant acts contrary to fair competition. This is the case in particular where the email advertisement was sent without the prior permission of the recipient. An exception to this rule applies only if there is an ongoing business relationship between the sender and recipient. In this case, the company is generally permitted to use the email address for advertisement purposes under specific conditions.

 

In addition the German courts have also created certain limits for online advertisements:

 

For instance, the unauthorized use of registered trademarks as Ad-Words or the use of trademarks in an invisible form on a webpage (e.g., by displaying white type-face on a white background) in order to improve the ranking of the homepage on internet search engines infringes German trademark law. This also applies to the unauthorized use of trademarks in META tags and to the implementation of contents of third parties that are not visible to the web page visitor. Advertisements using framing technology also constitute legally shallow waters. Yet, despite the fact there are certain important restrictions, most of these are manageable and sufficiently clear-cut so that there is a broad spectrum of advertising forms available which may be used for online advertising in Germany.

 

There are also certain restrictions and regulations under German law with regard to raffles: linking an advertisement campaign with participations in a raffle is generally permitted, but certain circumstances may lead to an infringement of German competition law, e.g. if the conditions for participation are ambiguous or if there is a condition to acquire certain goods in order to participate in the raffle. However, raffles provide a good opportunity to not only acquire email addresses of participants but may also provide an easy way of obtaining permission to use the email addresses for advertisement purposes.

 

The consequences for companies infringing German competition law are serious and far-reaching and should be kept in mind in particular in case of “aggressive” and innovative advertisement strategies. An eye should always be kept on the legal requirements and conditions under German law in this regard. Otherwise, there is a risk of costly warning notices (Abmahnung), legal proceedings and claims for damages.