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With comparative advertising, an entrepreneur makes direct or indirect reference in his advertising to a competitor, his goods or services and makes a comparison with his offer.

Comparative advertising promotes competition and creates transparency for the consumer. For this reason, it is generally permitted as long as it follows certain principles laid down by the legislator.

What is Comparative Advertising?

In order to understand the characteristics of comparative advertising, one must first ask what is generally meant by the term advertising.

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”

This refers to any statement by an entrepreneur in his function as a supplier on the market with the aim of promoting his sales.

Comparative advertising is …

Any advertising that directly or indirectly

makes recognizable.

This is the case if an advertiser refers directly or indirectly to a competitor or his offer through his statement, so that he can be identified by the addressed public.

An explicit mention of the other entrepreneur, his goods or services is not required for the assumption of comparative advertising. It is sufficient if it is generally possible for the addressee to recognize the identity of the competitor or his offer.

When is Comparative Advertising Permissible?

It is permissible if …

… It Does not Disparage or Denigrate the other Entrepreneur or His Offer

The motive of comparative advertising naturally often includes a certain derogatory character.

The praise of one’s own offer compared to that of the competitors is an essential feature of competition.

However, the limits to unfairness are exceeded when the comparative advertising is no longer of a factual nature and not objectively verifiable.

If an advertisement diminishes the reputation and appreciation of a competitor or his offer among the participating public (disparagement) or even degrades him or his goods and services to such an extent that there is contempt (denigration), it is inadmissible.

For example, blanket devaluations, unnecessary exposure or advertisements with aggressive tendencies are unfair.

… It Does not Violate the Prohibition of Exploiting Reputation

If the advertiser alludes to another company or its offer in order to exploit its good reputation already acquired on the market and thus transfers the attention and reputation of the competitor to himself and his services, he acts unfairly.

Such exploitation of reputation existed, for example, in the distribution of imitations of well-known luxury perfumes. Here, customers were enabled to find the offered fragrances by means of a comparison list, on which the original brands were listed on one side and the corresponding imitations on the other.

… It is not Misleading

The general prohibition of deception also applies in the field of comparative advertising.

If an advertisement is likely to provoke purchasing decisions that the addressee would not otherwise have made, the advertisement is misleading and unfair.

The benchmark here is the average consumer and a consideration of the overall impression of the advertising.

Price comparisons for advertising purposes must, for example, contain the information that is necessary for a correct presentation of the overall impression and a prevention of misunderstandings.

If there are significant differences between the offers being compared, these must be highlighted.

Omission of information can also be inadmissible deception if it is likely to create a false overall impression.

For example, a comparison of individual mobile phone tariffs, which disregards the free minutes, violates the prohibition of deception, as these are relevant components of the offer of the individual providers and can be fundamental for potential purchase decisions.

Rechtsanwalt Peter Harlander Peter Harlander
Harlander & Partner Rechtsanwälte „Bei Mehrdeutigkeit kommt die Unklarheitenregel zum Tragen: Der Werbende muss die für ihn ungünstigste Interpretation gegen sich gelten lassen!“

… There is Comparability of the Goods and Services

The goods or services compared with each other must have a sufficient degree of interchangeability.

This is the case if they are either intended for the same need or have the same purpose. They do not have to be identical, but merely substitutable according to their purpose.

In the case of price comparisons, a general qualitative equivalence of the goods is required and significant differences, such as different distribution forms or calculation bases, must be disclosed.

Subscription prices of a tabloid newspaper can therefore not be compared with those of a newspaper that enjoys the reputation of a high-quality source of information.

If a “no-name” product is to be compared with a product of a well-known brand, this is generally permissible as long as the two products are interchangeable with regard to their main benefit.

A basic interchangeability would exist, for example, in the comparison of two glasses.

However, the luxury character of branded products does have its own, albeit subordinate, purpose (lifestyle, prestige). The advertiser must point out the difference existing in this respect, even if the products do not differ significantly in their quality and other characteristics.

… It Does not Disregard the Prohibition of Imitation

An imitation prohibition also applies to a limited extent. It is permissible to describe one’s offer as equivalent to that of a competitor.

However, it would be inadmissible if the praise exceeds a simple recognition and the advertised product clearly presents itself to an average consumer as an imitation or imitation of the product of a competitor (perfume comparison lists).

… No Risk of Confusion is Created

The advertising must not create a risk of confusion between the advertiser and a competitor, their protected trademarks or their goods or services.

It is therefore sufficient that there is a mere risk that confusion could occur – there does not yet have to have been an actual confusion.

… The Principle of Objectivity is Observed

This is the case if the advertising “objectively compares one or more essential, relevant, verifiable, and typical characteristics of these goods and services, which may also include the price.”

The purpose of this principle is to enable potential customers to compare the compared offers on an objective basis and to make a purchase decision based on this.

Consequently, the advertising must at least have a verifiable core of facts and be of a factual nature. It may therefore not merely contain a subjective value judgment.

The benchmark here again is how the advertising presents itself to an average consumer as the addressee. It is also assessed from his point of view what is considered in individual cases as essential or relevant information that is necessary for a purchase decision.

… In the Case of Goods with a Designation of Origin, it Refers to Goods with the Same Designation – “Champagne Clause”

If a product has a designation of origin, it may – actually – only be compared with such products that have the same designation of origin.

But: If the remaining requirements placed on comparative advertising are met, a product without a designation of origin can also be compared with a product with a designation of origin – for example, champagne.

These principles also apply to system comparisons, in which a competitor is not explicitly named, but certain manufacturing, purchasing or distribution systems are compared with each other in such a way that there is a reference to services of a competitor.

What Legal Consequences are to be Expected in the Event of a Violation of these Regulations?

Important Points