Price increase
sold as a
discount.
Price increase
sold as a
discount.
from
An online store advertises a big discount, the crossed-out price looks tempting and you click on the offer. But what if the crossed-out price was not the previous normal price at all, but the retailer artificially increased it shortly beforehand? And does a clarifying note still help if you have already landed on the product page?
What had happened?
A mattress seller spotted a competitor and was stunned. He advertised two mattress models on his website at greatly reduced prices: 169 euros instead of 269 euros and 229 euros instead of 249 euros. That sounds like a good deal.
However, a look at the prices from the previous week showed the true picture. Exactly the same mattresses had cost 129 and 199 euros respectively. So the price had not gone down, but up. The price drop suggested a saving that never existed. The competitor was issued a cease and desist letter for infringement of competition law, but refused to pay the cease and desist letter costs of over 1,100 euros.
Can a clue save the day?
The warned company argued that the next page, after clicking on the banner, showed the real previous week’s price. The customer had therefore been informed before making a purchase.
The Cologne Higher Regional Court allowed the Judgment of 27.03.2026 – Ref. 6 U 77/25 do not apply. After all, anyone who clicks on an offer has already made a decision, namely to take a closer look at the product. It was precisely this decision that was triggered by the false impression of a favorable offer. In this context, the court spoke of a so-called “lure effect”.
The fact that the customer is still told the true price previously demanded before the purchase contract is concluded is not suitable to rule out an inducement to make a business decision.
In addition, the explanatory notice appeared on the following page and was written in the smallest font size of the entire offer – even smaller than the reprinted strike price. Anyone advertising a conspicuous price reduction must make a correction at least as visible.
Do I have to pay for such a cease and desist letter?
The warned company tried another way out. It invoked a legal regulation that excludes warning costs for certain formal infringements in online trading. These include, for example, missing mandatory information that can be easily detected by an automatic computer program.
However, the court was not convinced by this either. If an advertisement not only infringes a formality, but actively misleads consumers, this exclusion does not apply. Otherwise, retailers could advertise with fake discounts with impunity and competitors would no longer have any reason to take action against them. This would simply not be compatible with the aim of consumer protection.
Received a cease and desist letter?
How to react
You are best advised to
cease and desist letter!
A cease and desist letter, e.g. for infringement of competition law, industrial property rights or copyright, should always be taken seriously, as it can have considerable legal and financial consequences.
Timely and professional advice is crucial in order to minimize risks and develop the right strategy.
- Check cease and desist letter: Have the cease and desist letter legally checked. Not every cease and desist letter is justified, formally correct and abusive cease and desist letters are unlawful.
- Observe the deadline: Be sure to respond within the set deadline to avoid further legal action such as an injunction or a lawsuit.
- Check the cease-and-desist declaration: Do not sign a pre-formulated cease-and-desist declaration without legal advice. It could be too far-reaching and lead to considerable and lasting disadvantages. Once a cease-and-desist declaration has been signed, it is almost impossible to get rid of it and can result in considerable follow-up costs in the form of high contractual penalties.
- Strategy: Regardless of whether the cease and desist letter is justified or not, you should consider the right strategy for responding to the cease and desist letter with professional support. Many aspects play a role here. For example, there may be formal errors or the submission of a cease-and-desist declaration may involve incalculable risks.
Significance for practice
A strike price may only display the lowest price of the last 30 days. Anyone who artificially increases the price shortly before a promotion in order to show a supposed discount afterwards is acting unfairly.
An informative notice must be clearly visible where the advertising is made. Small print on a subpage is not sufficient.
Even clicking on an advertising banner is legally considered a consumer decision. Misleading is therefore not only present at the point of purchase. Online retailers should carefully document price promotions – especially around Black Friday or Christmas – and ensure that all advertised discounts are correct.
Conclusion
The ruling makes it clear that anyone who advertises with strike prices must be serious.
A discount that is not really a discount is not a clever marketing strategy, but misleading – and therefore a violation of competition law. Misleading content cannot be justified with small print on the next page. Online retailers should therefore ensure that their pricing and discount campaigns are legally sound.
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