(1) Unfairness is deemed to have occurred where a person engages in a misleading commercial practice which is suited to causing the consumer or other market participant to take a transactional decision which he or she would not have taken otherwise.
(2) A commercial practice is regarded as misleading if it contains false statements or other information suited to deception regarding the following circumstances:
1. the main characteristics of the goods or services, such as their availability, nature, execution, benefits, risks, composition, accessories, method or date of manufacture, delivery or provision, fitness for purpose, uses, quantity, specification, after-sale customer assistance, complaint handling, geographical or commercial origin, the results to be expected from their use, or the results or material features of tests carried out on the goods or services;
2. the reason for the purchase, such as the existence of a specific price advantage, the price or the manner in which the price is calculated, or the conditions on the basis of which the goods are supplied or the services are provided;
3. the nature, attributes or rights of the entrepreneur such as his or her identity, assets, including intellectual property rights, the extent of his or her commitments, qualifications, status, approval, affiliation or connections, awards or distinctions, motives for the commercial practice or the nature of the sales process;
4. any statement or symbol in relation to direct or indirect sponsorship or approval of the entrepreneur or of the goods or services;
5. the need for a service, part, replacement or repair;
6. compliance with a code of conduct by which the entrepreneur has undertaken to be bound when he or she makes reference to such commitment; or
7. the rights of consumers, in particular those based on promised guarantees or warranty rights in the event of impaired performance.
(3) A commercial practice is also regarded as misleading if
1. in connection with the marketing of goods or services, including comparative advertising, it creates confusion with other goods or services or with the trade mark or other distinguishing mark of a competitor or
2. it is used to market a good, in one Member State of the European Union, as being identical to goods put on the market in other Member States of the European Union, while these goods have significantly different composition or characteristics, unless justified by legitimate and objective factors.
(4) Information within the meaning of subsection (2) is also regarded as including information which forms part of comparative advertising as well as pictorial representations and other events which are targeted at, and are suitable for, taking the place of such information.
(5) It is presumed to be misleading to advertise with a price reduction in a case where the price concerned has been demanded for only an unreasonably short period of time. In the event of dispute as to whether and for what period of time the price was demanded, the burden of proof falls on the person who advertised with the price reduction.
(6) A commercial practice which violates section 312d (2) sentence 2 of the German Civil Code is misleading.