According to the court, it makes no difference for the identity of a trademark which letters (uppercase or lowercase) are used to display the trademark.
Further, the court made a reference to the ECJ decision C-487/07 (L'Oréal) saying that comparative advertising may also constitute an infringement of a trademark if the comparative advertising does not fulfil the requirements set out in Directive 2006/114/EC.
The court decided that in this case the defendant has violated article 4(f) of Directive 2006/114/EC (implemented into Austrian law by § 2a Unfair Competition Act) by using the reputation of the plaintiff's trademark in an unfair way to advertise for his own products. Under the present circumstances, it was not necessary for the defendant to state the trademark of the market leader (plaintiff's trademark) to communicate to the opposite market side essential information, as every skylight window may be replaced by the defendant's products.
In the opinion of the court, the defendant attracts attention unreasonably by using the reputation of someone else's trademark, which the defendant's products would not have attracted on their own.
Thereby it is not important that the trademark use is also violating article 4(a) and (d) of Directive 2006/114/EC on misleading and degrading comparative advertising.
The court determined that the indication for trademarks or other signs of competitors within comparative advertising is only permissible if it is necessary and appropriate to fulfil the purpose (stated in Directive 2006/114/EC) to objectively inform consumers about advantages of different products and services. In this case, the indication of the plaintiff's trademark was not necessary to advertise the products of the defendant.