The court first generally stated that comparative advertising is misleading when the advertiser cannot reason and show evidence of the correctness of the comparison. A comparative price, the court stated, may mislead the consumer on the amount of benefit gained by the consumer, especially when the comparative price is not based on a sufficiently extensive survey on the competitor’s prices. Further, the misleading nature may also be based on the fact that the comparative price is not based on the sufficiently up to date survey on the competitor's prices. In the court's opinion, only a survey made by a trader at the maximum several days before the publication of the advertisement, is sufficiently current to ensure a proper price comparison.
Next, the court assessed the advertisements product-specifically.
(1) As to the price comparison of the knitted garments, the court stated that the defendant compared its own prices with the prices of only one competitor. The court considered that using comparative prices in the advertisement in this respect, was not based on sufficient survey on the prices applied by competitors, hence the defendant did not evidence the correctness of the comparison.
(2) Furthermore, the defendant had advertised running shoes by comparing their prices to only one corresponding product sold by a competitor. The court assessed that at the time of the advertisement, there were several corresponding models of running shoes available at very affordable prices. In this respect, the court stated, using the comparative price in the advertisement is not based on sufficient survey on the prices of the competitors, therefore the defendant did not provide sufficient evidence to support the correctness of the comparison. The court made a similar assessment in respect of the price comparison of caps and backpacks, sport underwear set and socks described above.
(3) Conversely, the court considered that in respect of the soft-shell jacket, shell jacket, shell suit, and North Ice Trekking and Hiking shoes, the defendant made a sufficient survey on competitor prices based on the fact that the defendant made use of the lowest price applied earlier by the competitors as the reference price, this instead of the current prices applied by the competitor. The court ruled that in this case, the survey on the comparative prices was considered sufficient because of the assessment as indicated, although the defendant made the comparison only to one or two comparable products.