Comparative advertising has generally been permitted in Germany since 2000 and is only unfair and therefore prohibited under competition law in certain cases. The background to this is also European law, which sets out many regulations in competition law. Comparative advertising in competition law has now been fully harmonized by EU Directive 2006/114/EC (formerly: 84/450/EEC).
In particular, this harmonization means that the corresponding transpositions in Section 6 UWG into German law also have a certain special status within the UWG and, in particular, must always be interpreted in accordance with the Directive. The ECJ therefore always has the “last word” on questions of interpretation.
The concept of advertising in competition law is to be understood broadly
What is meant by “advertising” is defined in Art. 2 lit. a) of Directive 2006/114/EC. Accordingly, advertising is
any statement made in the course of a trade, business, craft or profession with the aim of promoting the sale of goods or the provision of services, including immovable property, rights and obligations.”
Art. 2 lit. a) Directive 2006/114/EC
This includes significantly more types of behavior than a “classic” advertising term would initially suggest. For example, even websites using certain metatags are covered (see ECJ, judgment of July 11, 2013, case no.: C-657/11 – Belgian Electronic Sorting Technology).
The question of whether advertising by third parties is also possible is controversial and has not yet been decided by the ECJ. This can be particularly problematic in the case of influencer marketing. At least in certain constellations, some courts and legal literature consider this to be possible. Particular caution is therefore required here!
Competitor must be recognizable
In order for an advertisement to become a comparative advertisement, it must
directly or indirectly recognizes a competitor or the goods or services offered by a competitor [machen].
§ 6 Abs. 1 UWG
Direct recognizability means that competitors are mentioned by name or their products are shown in the comparative advertising, for example. However, indirect recognizability is also sufficient. According to the case law of the ECJ, this is the case if
it is possible to recognize this company or the goods offered by it as those to which the advertising statement specifically refers.
ECJ, judgment of April 19, 2007, Ref.: C-381/05, para. 24
This may be the case, for example, if the own product is a conspicuous imitation (KG Berlin, judgment of August 28, 2012, Ref. 5 U 48/06) or if reference is made to certain properties (BGH, judgment of January 17, 2002, Ref.: I ZR 161/99 – Hormone replacement therapy), which, for example, only a competitor’s product has.
However, it is not sufficient if you have to “think around 10 corners” for the reference or if the competitor is not recognizable in the advertising itself, but only through external circumstances (BGH, judgment of December 6, 2007, file no.: I ZR 169/04 – Imitationswerbung).
Comparative advertising generally permitted under competition law
With the EU directives on comparative advertising, competition law in Germany has undergone a paradigm shift: This is because comparative advertising is now to be classified as something good and desirable in the first place. This not only means that comparative advertising is generally permissible under competition law.
It is much more important that the exceptions in Section 6 para. 2 UWG regarding when comparative advertising is unfair and therefore inadmissible must be interpreted in accordance with the case law of the ECJ in such a way that this is positive for comparative advertising (ECJ ruling of February 8, 2017, case no. C-562/15 – Carrefour Hypermarchés).
A comparison in the advertising is therefore acc. § 6 Abs. 2 UWG is therefore only unfair under competition law if this comparison
- does not relate to goods or services for the same need or purpose,
- is not objectively related to one or more material, relevant, verifiable and typical characteristics or the price of those goods or services,
- leads to a likelihood of confusion in the course of trade between the advertiser and a competitor or between the goods or services offered by them or the signs used by them,
- unfairly exploits or impairs the reputation of the trademark used by a competitor,
- disparages or denigrates the goods, services, activities or personal or business circumstances of a competitor, or
- a product or service is an imitation or replica of a product or service marketed under a protected trademark.
Advertising must also not be misleading!
Even if comparative advertising is permissible under competition law pursuant to Section 6 UWG, it may still be unfair for other reasons. However, due to full harmonization under European law, this is only the case if the advertising is misleading, Section 5 para. 3 UWG. The other grounds for unfairness under competition law are not applicable to permissible comparative advertising.
Lawful comparative advertising can restrict trademark rights!
This “special status” of permissible comparative advertising in competition law even has an impact on trademark law to some extent. Because the EU legislator only wanted to prohibit comparative advertising if it either violates one of the requirements of Section 6 para. 2 UWG or is misleading, trademark law cannot restrict comparative advertising either (ECJ, judgment of June 16, 2009, ref.: C-487/07 – L’Oréal).