If it is recognizable to the relevant public that it is a legal opinion expressed in the context of legal prosecution or legal defence, this statement lacks the suitability to deceive required to fulfil the offence of misleading according to Section 5 para. 1 sentence 2 case 2 UWG. This does not necessarily require an explicit reference to the fact that it is merely the company’s own legal opinion.

In contrast, Section 5 (1) sentence 2 case 2 UWG covers statements in which the trader claims a clear legal situation towards consumers that does not actually exist, provided that the customer addressed does not understand the statement as an expression of a legal opinion, but as a statement. (BGH, judgment of April 23, 2020, ref.: I ZR 85/19)