A legal issue was if the advertising was misleading in the sense of article 5 paragraph 1 sentences 1 and 2 no.1 UWG. The Oberlandesgericht found it was misleading, because it ambiguously could induce the consumer to think that the defendant was the owner of an independent network, which was better than that of its competitors, and this was not according to reality. Actually, the defendant was using the networks of other companies, including the plaintiff’s one.
A further legal issue was to determine if the defendant was using comparative advertising in a permissible way, according to article 6 paragraph 2 UWG. However, this rule does not include the condition provided in article 4 and 4 in light of Directive 2006/114/EC, which pointing to articles 6 and 7 of Directive 2005/29/EC, stipulates that comparative advertising is only permissible if it is not misleading. The Oberlandesgericht had to interpret the German legislation in the light of these European rules and found that the comparative advertising was misleading (inaccurate in content), and thus, to be prohibited.
The last issue to be assessed, was if the defendant was allowed to make use of the applicant's trademarks, or similar trademarks in its advertisement. However, based upon article 5 paragraph 1 and 2 of Directive 2008/95/EC the Oberlandesgericht decided it had to be prohibited if the defendant was using them to identify its own services.