Showers
in the
Gym.
Showers
in the
Gym.
from
Is it part of the offer of a fitness studio that customers can also shower there? Can you be asked to pay extra for this and, if so, must this be made clear in the advertising? The OLG Karlsruhe provided answers to these questions.
Showers in the gym
A chain of discount fitness studios had put up a large-format billboard in one of its studios. It was advertised as “15.90 euros per month for a contract term of 12 months.” advertised. However, the use of the showers was not included in this offer. If the customer wanted to use the shower, an additional EUR 0.50 was charged. There was no reference to these additional costs on the billboard.
The Wettbewerbszentrale saw this as a case of unfair competition and took the sports studio to court for injunctive relief. In the opinion of the Wettbewerbszentrale , the advertising was anti-competitive, as no reference was made to the conditions of the offer (showers cost extra), which also constituted a violation of the Price Indication Ordinance. The advertising was also misleading, as the consumer could assume that the free use of the showers was part of the gym’s service without any separate indication.
The gym disagreed with this view, arguing that consumers do not expect free showers to be part of the service. Showering was not obligatory and was also not used by a large proportion of customers. The resulting additional costs, which the gym put at €2.00, were also not decisive for the customer’s decision on the offer.
Decision by the court
The judges at the Karlsruhe Higher Regional Court(judgment of 19.11.2008 – 6 U 1/08) took a different view and ordered the fitness studio to cease and desist due to misleading advertising. A significant proportion of consumers expect the use of showers to be included in the price of a fitness studio. Although the gym operator is allowed to charge separately for this, it must then point this out accordingly. The studio would have been able to do this without any problems on the large advertising space. The scale of the additional costs associated with the showers of more than 10% of the monthly fee is also relevant for the customer’s decision.
Conclusion
The case is a good example of how advertising can be misleading by omission (in this case, the reference to the additional costs for showering). It is therefore advisable to check advertising in advance for any missing information.
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