Dear Mr Murphy

The Austrian publishing company Construct Data Verlag GmbH, which operates internationally, is sending out advertising communications virtually worldwide for entry in an online fair exhibitors' directory bearing the name "Fair Guide". Because the timing of this communication is close to that of the respective fair date, and due also to the presentation, recipients often gain the false impression that, even when signed and submitted, this is a free entry and/or entry / update for the official exhibitors' directory of the respective fair organization, although completing the entry is in fact subject to a charge, and entry has nothing directly to do with the fair mentioned or its organizer.

In our view, such misleading advertising communications must be viewed as inadmissible in particular on the basis of the strict judicial precedent of the Supreme Court. Construct Data apparently targets these offers primarily abroad, and there too always seeks to collect payment whenever a form is signed in error. Due to the large number of complaints and thus prejudice to Austrian competitors, as well as the reputation of the entire Austrian business community, and damage to Austrian companies with foreign establishments, the Schutzverband (Austrian Association against Unfair Competition) has instituted proceedings for an injunction against these communications - which we consider to be misleading - and the profits therefrom, i.e. a prohibition on the collection of payments. This intervention in a matter of unfair competition is initially restricted to the European Union and Switzerland, because here the legal position is largely identical, in particular due to the Directive relating to misleading advertising. If the outcome of these proceedings is successful, they will be extended to other countries.

The action has been dismissed in the proceedings of first instance on the grounds that the Schutzverband, due to the fact that communications were not sent to businesses in Austria, does not have a right of action, although, as stated above, we do indeed perceive prejudice as regards our members and shall file an appeal. In no manner, however, was the content of the communications assessed or approved; the decision was purely one relating to formal requirements.

In any event, intervention by the Schutzverband cannot replace challenging of claims under civil law by those businesses which have signed up to the directory. With regard to those companies which have been misled, we would therefore recommend that legal advice be sought; in our view error can be asserted. In our experience it is the case that, following contestation of a claim, apparently in no case has legal action been taken by Construct Data.

We recommend you, as an affected company, withdraw from the contract due to error. For this purpose, we are sending you a specimen letter, based specifically on Austrian civil law, according to which, based on agreement that Austria shall be the place of performance, this can be applied.

In addition, we also recommend that you file a complaint with the Federal Trade Commission (FTC), if you have not already done so:

Federal Trade Commission
600 Pennsylvania Ave. N.W.
Washington, D.C. 20580
Tel. 1-877-382 4537
Refer to reference number: 4183864

Best regards, Michael Friedl
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Zweigbüro Washington D.C. der AHST New York
Commercial Section at the Austrian Embassy
818 18th Street, Suite 500, N.W.
Washington D.C. 20006/U.S.A.
T: 1-202-537 5047 F: 1-202-537 5048
E: washington@austriantrade.org
W: www.austriantrade.org/usa
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