Contact

Persons to contact at Chemnitz Chamber of Commerce and Industry:

Nora MehlhornStraße der Nationen 25D-09111 ChemnitzPhone 0371 6900-1350Fax 0371 6900-191350E-Mail nora.mehlhorn@chemnitz.ihk.de

Karla BauerFriedensstraße 32D-08523 PlauenPhone 03741 214-3120Fax 03741 214-193120E-Mail karla.bauer@chemnitz.ihk.de

Dr. Ulf SpankeÄußere Schneeberger Straße 34D-08056 ZwickauPhone 0375 814-2120Fax 0375 814-192120E-Mail ulf.spanke@chemnitz.ihk.de

© Chemnitz Chamber of Commerce and Industry 2015

Chemnitz Regional Chamber

Plauen Regional Chamber

Zwickau Regional Chamber

The right way to advertise

Acceptable and unacceptable marketing practices

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Personal Advertising

Personal Approach

Door-to-door sales calls

Approaching the general public for promotional purposes is generally considered to be permissible. However, this only applies if the intentions of such solicitation are clear and are immediately recognisable. Intolerable harassment is deemed to prevail if persons thus approached in the public are unable to evade unsolicited approaches due to local conditions (e.g. in a narrow lane) or if those pursuing such practices disregard the dismissive reactions of the persons publicly solicited, e.g. by stalking after them or preventing them from continuing on their way.

Whether door-to-door sales calls are permissible or not is a controversial issue. Such calls are definitely improper in the following cases:

A problem frequently encountered in cases involving nuisance advertising is that of establishing identity. Accordingly, all manner of advertising or communication is deemed to be improper where the identity of the sender or those commissioning such contact is disguised or concealed, i.e. absence of an address to which the recipient is able to send any future cease-and-desist demand.

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If clearly opposed to will of the person called upon, e.g. ignoring a sign put up reading “No Street Traders!” or similar.

If street traders attempt to gain access to by devious means, e.g. on the pretext of “presenting some award from a prize draw or sweepstake”.

Forced entrance, e.g. by obstructing the doorway so as to prevent the door from being closed.

Advertising Content Email Advertising | Newsletters

Commercial advertising is indispensable. Without advertising one’s goods or services there is normally very little chance of attracting potential customers or clients.

However, the process of drafting and communicating the contents of advertising media calls for a large number of requirements to be complied with.The most important legislative provisions in respect of advertising are governed by the Unfair Competition Act (UWG).

For instance, the Unfair Competition Act lists a total of 30 commercial practices, all inadmissible vis-à-vis consumers. These so-called ‘black-list directives’ should always be observed when devising consumer advertising concepts.

Thus it is absolutely inadmissible to use quality seals of approval or protected terms without proper authorisation. Moreover, the consumer must never be put under (time) pressure or lured with promises or assurances that those proffering them are afterwards unable or unwilling to fulfil. Neither must fear, compassion or lack of judgement (especially in the case of children) be exploited.

All forms of advertising must be refrained from that are likely to mislead the consumer as a result of misinformation or failure to disclose necessary information.

Breach of the provisions stipulated in the Unfair Competition Act – Section § 8 UWG – may result in canvassers being warned or cease-and-desist claims being brought against them. Compensatory damages may even apply in some cases - Section § 9 UWG.

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Quite apart from the content, not every form of advertising is admissible. Under Section § 7 UWG harassing methods of advertising are prohibited. Generally speaking, advertising is prohibited in cases where this is evidently not desired by the recipient. Addressees may express this in different ways, e.g. by letterbox stickers reading “No Advertising”, registration in the “Robinson List” or in the absence of a declaration of consent.

Email Advertising

Electronic newsletters

Advertising by means of electronic post, e.g. email, is prohibited in all cases where addressees have not given their prior express consent to the sending of such mails. Entry of an email address in a public register or indication of the same in letter heads or on business cards is not deemed to constitute prior consent for email advertising purposes. This applies to advertising both vis-à-vis private consumers and commercial enterprises. Accordingly, the sending of unsolicited advertising emails (spam) is prohibited under competition law. An exception to this ruling may apply subject to certain additional requirements being fulfilled, but even then only if the entrepreneur implementing such promotion has received the email address from the customer in connection with the sale of merchandise or services.

are subject to the same stipulations as those pertaining to email advertising. In actual practice the sending of newsletters is frequently geared to the double-opt-in-process. According to this process, the customer subscribing to the newsletter first receives a so-called confirmation email. This email must not contain any advertising publicity whatsoever. It contains a request for binding confirmation of subscription to the newsletter to be given. The entrepreneur must not begin sending out any newsletters until having received such confirmation.

Whether this process complies with legal requirements or not is still very much a controversial issue. A supreme-court decision is still pending.

Telephone Advertising

Advertising by Fax

Postal Advertising

Consumer advertising by telephone is only admissible if persons thus addressed have given their express consent thereto prior to receiving the promotion call. The issue regarding consent during the actual promotion call is therefore inadequately addressed.

In the business sector advertising by telephone is only admissible if specific and objective interest prevails on the part of the person receiving the telephone call. This is the case where those implementing such promotion are able to proceed from presumed current requirements of the person thus contacted. However, such putative consent on the part of the called subscriber is insufficient if those implementing promotion make use of an automatic call machine. In that case, prior express consent of the person receiving the telephone call is required.

Consumers and entrepreneurs are protected in the same way against harassing fax advertising (including PC fax) all of which requires prior consent to be obtained.

Here again, putative consent on the part of entrepreneurs is inadequate owing to this form of advertising combining paper and PC resources.

Postal advertising is generally considered to be permissible in circularised and personally addressed forms or where distribution takes place “To All Households”. This does not apply if conflicting with any expressed will, e.g. letterbox inscriptions reading “No Advertising”. Postal advertising is also inadmissible if the impression is given to the effect that the letter has been sent on personal recommendation or as a message from some acquaintance.

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Advertising by Telephone and Fax | PostalAdvertising