Case law

  • Case Details
    • National ID: 4 Ob 209/14k
    • Member State: Austria
    • Common Name:4 Ob 209/14k
    • Decision type: Supreme court decision
    • Decision date: 16/12/2014
    • Court: Supreme Court
    • Subject:
    • Plaintiff: Unknown
    • Defendant: Unknown
    • Keywords: comparative advertising, unfair commercial practices, unfair competition
  • Directive Articles
    Unfair Commercial Practices Directive, Chapter 2, Article 5
  • Headnote
    An advertisement comparing products on the basis of non-objective values is considered to be unfair competition.
  • Facts
    The defendant advertised in a magazine designated for advertising agencies.
    The published advertisement shows three magazine racks standing next to each other, the defendant's one being in the middle. The advertisement was accompanied by the slogan "Good journalism is neither left nor right".
    The plaintiff requested to prohibit the defendant from using this pejorative advertisement, as it suggests that the plaintiff's newspaper is inferior.
  • Legal issue
    The court decided that the pejorative advertising is indeed an unfair competition because it is an evaluation which cannot be determined objectively.
    Comparative advertising is permitted if it is based on essential, relevant, verifiable and typical characteristics of the concerned goods or services and not only based on subjective evaluations. The objectivity requirement prohibits comparative advertising based on characteristics that are not verifiable.
  • Decision

    Is the non-objective dispraise of a competitor considered to be unfair competition?


    Full text: Full text

  • Related Cases

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  • Legal Literature

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  • Result
    The defendant's appeal was not successful.