The principles that must be present in all cases of possible (unfair) comparative advertising pursuant to Section 6 UWG have already been discussed in more detail in a separate article. In each case, one of the six grounds for unfairness under Section 6 para. 2 UWG. Only in these cases is comparative advertising unfair and a breach of competition law has occurred.
Even if the six elements of unfairness seem self-explanatory to some extent, it is always questionable, especially for entrepreneurs in individual cases, whether their advertising – or that of a competitor – does not fulfill one of the elements of unfairness.
§ Section 6 para. 2 No. 1 UWG: goods or services for the same needs or the same purpose
The comparative advertising must refer to goods or services that relate either to the same need or the same purpose. It is therefore a question of a certain degree of interchangeability (= substitutability) from the point of view of the average consumer addressed. Partial interchangeability is sufficient if the advertiser points this out in order to avoid errors.
The requirement of § 6 para. 2 No. 1 UWG is therefore very similar to the determination of a competitor status. The difference is that the competitor status is determined on the basis of the entire range of goods and services offered by the two entrepreneurs. In the case of comparative advertising, only the compared goods or services are set in relation to each other and checked for their interchangeability.
Examples:
- Tap water and mineral water (OLG Munich, judgment of September 16, 1999, Ref.: 6 U 2646/98)
- Muesli bars and chocolate bars (OLG Hamburg, judgment of March 6, 2003, Ref.: 5 U 227/01)
- Different foodstuffs together (ECJ, judgment of November 18, 2010, Ref.: C-159/09)
- Rail travel and air travel, each as a means of transportation.
- Business newspaper and lottery company, in each case as an opportunity to make money (BGH, judgment of January 17, 2002, Ref.: I ZR 215/99)
§ Section 6 para. 2 No. 2 UWG: Requirements for the comparison of characteristics
The comparison in advertising may only refer to “essential, relevant, verifiable and typical characteristics or the price of the goods or services”. This means that the consumer should receive “added value” from the comparative advertising. However, verifiability does not have to be present for all consumers: it is sufficient if the compared characteristics can be verified by experts.
- Method of production, e.g. regionality, production under certain conditions (e.g. violation of tax or environmental regulations).– or environmental regulations).
- Customer service, e.g. density of the service network or service times.
- The lack of features in the competitor’s offer.
- Price comparison even for products that are not of the same quality.
§ Section 6 para. 2 No. 3 UWG: Likelihood of confusion
Comparative advertising must not give rise to the risk that the relevant public might believe that the products in question come from the same company (so-called likelihood of confusion).
Such a likelihood of confusion was denied in the event that the competitor’s products were described as “similar” (BGH, judgment of April 2, 2015, case reference: I ZR 167/13).
§ Section 6 para. 2 No. 4 UWG: Exploitation of reputation and damage to reputation
According to the BGH, unfair exploitation of reputation is to be determined as follows:
“The reputation of a sign is unfairly exploited if its use in the context of comparative advertising creates an association between the advertiser and the competitor among the relevant public in such a way that they transfer the reputation of the competitor’s products to the advertiser’s products.”
BGH, judgment of October 01, 2009, Ref.: I ZR 134/07
It is therefore an image transfer in which the competitor’s product is used as a kind of “driving force” to increase the company’s own sales. However, this is not the case if the competitor’s product is presented as inferior in the comparative advertising (OLG Cologne, judgment of September 19, 2014, Ref.: 6 U 7/14).
Unfair damage to reputation, on the other hand, is the disparagement or denigration of a competitor’s trademark. This is certainly the case if the requirements for damage to reputation under trademark law (Section 14 (2) No. 3 MarkenG) are also met.
However, the use of a competitor’s trademark is not unfair per se. Rather, it must be possible to use the trademarks of other companies for (fair) comparative advertising. Unfairness is therefore always only established by further circumstances.
- A manufacturer sells cheap jewelry with the addition “à la cartier” in the category “Brand jewelry: Cartier” (BGH, judgment of 04.12.2008, Ref. I ZR 3/06).
- In principle, it is permissible, to use the third-party trademark in the context of comparative advertising on your own website with the intention that users of search engines become aware of your own offers (BGH, judgment of 2.4.2015 – I ZR 167/13).
- Use of a trademark that is identical or similar to a competitor’s trademark for a product that has characteristics that could have a negative impact on the third-party trademarked product.
§ Section 6 para. 2 No. 5 UWG: Disparagement or denigration of the competitor or its products
Comparative advertising must also not exceed the limits of a factual discussion or devalue other products across the board. Freedom of expression must also be taken into account. Consumers have long been accustomed to irony or other forms of humorous advertising, so this is also possible and can still constitute a factual discussion.
The “denigration” is only a stronger form of disparagement. Since disparagement already constitutes unfairness, it is not necessary to differentiate here.
- Designation of a competitor as a “loser” (OLG Hamburg, judgment of July 12, 2001 – 3 U 287/00).
- “Are you still on the bottle?” for comparative advertising of tap water with mineral water (OLG Munich, judgment of September 16, 1999 – 6 U 2646/98).
- Persiflierende Darstellung unterschiedlich großer Hunde zur Veranschaulichen unterschiedlicher Reichweitenzahlen von Magazinen (OLG München, Urteil vom 22. 8. 2002 – 29 U 3339/02).
- Parodying a representative of a competitor in the context of a fictitious award ceremony (BGH, judgment of 24.1.2019 – I ZR 200/17) .
§ 6 Abs. 2 No. 6 UWG: Imitation or imitation of a product or service
The final unfairness element of comparative advertising in competition law pursuant to Section 6 para. 2 UWG exists if the advertiser’s product is presented as an imitation or replica. It is irrelevant whether it is actually an imitation or an imitation – it is only the impression conveyed by the comparative advertising that counts.
The competitor’s product must be protected by a trademark: These are in particular trademarks, but also company logos.
- Alone nt is not sufficient if the terms “similar” or “like” are used.
- A comparison list that shows the characteristics of the competitor’s product and then makes it clear that the own product is not only an alternative, but also has essential characteristics (e.g.. der Geruch bei einem Parfum) gleichartig sein soll.
