Misleading advertising for Game of the Year 2004

25 August 2005

Marc Weßling

On 8 December 2004, the District Court of Cologne handed down a judgment based on preliminary injunction proceedings issued by Days of Wonder Inc, a client of Bird & Bird, against an international toy store chain. Days of Wonder produces and sells board-games and has a big presence in the German market.

In 2004, Days of Wonder received the German “Game of the Year” award (the Oscar of the game and toy business!) for a board-game called “Ticket to Ride”. Toy stores all over Germany wanted to add “Ticket to Ride” to their product lines and sales boomed but Days of Wonder did, at all times, pay careful attention to the types of toy stores it entered into supply arrangements with because it was keen to maintain exclusivity.

In November 2004, Days of Wonder became aware that “Ticket to Ride” was being advertised by a German toy store chain with which Days of Wonder had no direct relationship. In the run up to Christmas, the toy store chain intensively advertised the game on its website, even though it did not have enough copies of the game to meet the consequential demand. The inability to meet demand was proved through test shopping in several of the chains stores throughout Germany. Further, the toy store was advertising the game at a reduced price (below purchase price). Clearly, Days of Wonder was concerned that this would negatively affect its sales levels and its reputation.

The crucial question was whether the toy store chain was permitted to advertise the game on its website bearing in mind that they could not meet demand for the product in any of the stores.

The Court of Cologne agreed that consumers would expect a product to be available if advertised online by such a big store chain and granted injunctive relief to Days of Wonder (represented by Richard Dissmann and Dr Marc Weßling of Bird & Bird) on the basis of misleading advertising as to the availability of the game.

The store filed an objection on the basis that it was not necessary for every store to hold many copies of the game as it was always possible to transport copies from store to store upon request. The store also claimed that the feature on its website was information and not an advertisement. This was rejected by the court at a subsequent hearing. The court also held that the advertisement constituted unfair competition with the result that the objection was withdrawn and the injunction was accepted as a final and binding ruling.