German court bans advertisements for virtual items in Runes of Magic


This is a guest posting from Dr. Andreas Lober (Andreas.lober@schulte-lawyers.com) and Wojtek Ropek (wojtek.ropel@schulte-lawyers.com).

The German Supreme Court of Justice recently banned certain advertisements for virtual items in the game “Runes of Magic”. The court considered them to be an illegal commercial practice under the German Act against Unfair Competition. This ruling might become relevant to the entire free-to-play industry and causes already a lot of confusion.

A consumer watchdog – the Bundesverband der Verbraucherzentralen - filed the case and the judgment was recently rendered against Gameforge as operator of “Runes of Magic”. The court found one of the advertisements unlawful as it directly incited kids to buy virtual items. Any direct incitement to kids to buy any specific product is forbidden in Germany and the European Union.

 The critical part of the advertisement in question was its wording: “Seize the advantageous opportunity and add that certain something to your armour and weapons”. Gameforge also named this whole offer the “pimping week” and granted the players the opportunity to “beef up” their characters. The advertisement linked directly to the item shop of the game, but not to a specific item.

The German Supreme Court considered this advertisement as a direct enticement of children to buy virtual items in the ingame store. The language used was directly aimed at children. The first of the court’s arguments was the use of the German informal “you” (“Du”) form, which is in the German language commonly used only between friends, family and children. The second argument was the choosing of words like “pimping” or “beef up” by Gameforge. The court considered those words as typical words in the German teenage slang and not part of the common vocabulary of adults. The payment methods offered were the court’s third argument. Gameforge offered the possibility to pay for virtual item purchases by text messages via a mobile phone. Such payment methods are used by children, said the court.

Lower courts considered such advertisements only as illegal, if they would request the kid to buy a specific product – not to just visit a shop. This is particularly interesting, because both lower courts had dismissed the claim because the advertisement did not concern a specific product. However the German Supreme Court had a different view. The direct link in the advertisement to the item shop was sufficient for the court and so it ruled that Gameforge has to cease the use of such advertisements.

 The ruling can still be challenged because it was a default decree, which is rather uncommon in front of the German Supreme Court. Nevertheless it shows how careful online game operators should be with choosing the wording for marketing campaigns. Only very small and subtle changes to the text of the advertisement would deprive the consumer watchdog from any foundation for such a claim.
 

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