Misleading information about business relationships pursuant to Art. 3 lit. b UCA

Facts

The facts concern the mailing of forms by the company [C. AG] , which were judged by the Federal Supreme Court to be misleading within the meaning of Art. 3 lit. b UCA. The forms were sent to several hundred thousand addresses abroad in November 1994, January 1995 and November 1995 and gave the impression that they were invoices for already completed entries in international telex and fax directories. In fact, however, they were offers for such entries. The lower court had acquitted the respondents 1 and 2 of the charge of unfair competition, which was overturned by the Federal Supreme Court.

Considerations

The Federal Supreme Court concluded that the forms sent out in November 1994, January 1995 and November 1995 contained misleading information about the business relationships within the meaning of Art. 3 lit. b UCA. Although the forms contained indications that they were offers and not invoices, these indications were so hidden or in small print that they could easily be overlooked by the average addressee. The layout and design of the forms gave the impression that they were invoices for services already rendered. This created the risk of deception and payment based on error, which is covered by the facts of Art. 3 lit. b UCA.

However, the Federal Supreme Court dismissed the appeal with regard to Art. 3 lit. h UCA (particularly aggressive sales methods). The mere sending of the forms did…