In 2018, the German Consumer Protection Authority (VZBV) took Nintendo to court over its no-cancellation policy for pre-ordering games on the Nintendo Switch eShop, stating that it was in violation of consumer’s rights to cancel and refund games that they had pre-ordered from the digital storefront.
Nintendo managed to win the case pending appeal in 2020, the German court of appeals has now overturned that decision thanks to VZBV as well as the Norwegian Consumer Council.
Court verdict summary
Nintendo had already offered video games for download in its e-shop before the official release date. The download usually included a software-comprehensive “pre-load” of the game as well as an icon displayed on the game console. The unlocking of the game took place via update only on the official start date. Such online purchases can usually be revoked within 14 days without giving reasons.
However, Nintendo had excluded the right of withdrawal and relied on a legal exception. However, the prerequisites for the right of revocation were not met, as the download made available after the pre-order did not yet contain any usable game. Until the release date, the game is worthless for the buyers and the contract of Nintendo is not fulfilled in any way.
…The Regional Court of Frankfurt am Main had dismissed the vzbv’s action at first instance. With their appeal to the Higher Regional Court of Frankfurt, the consumer advocates have now been successful. At the hearing, after discussing the legal situation, the judges had advised Nintendo to recognise the vzbv’s claim for injunctive relief as justified. The company complied with this.
In the acknowledgment judgment, the court upheld the vzbv’s action in its entirety. As is customary in such judgments, the acknowledgment judgment does not contain any grounds for decision.
Nintendo implemented a form of pre-order cancellation policy for the Nintendo Switch eShop, where players can choose to cancel their digital pre-order provided it is more than seven days away from the game’s actual release. With this verdict, it is possible that Nintendo will have to make even more changes in order to comply to it.