On 1 October 2009, the First Civil Senate of the Federal Court of Justice, which is responsible for competition law, among other things, clarified its case law on the limits of humorous advertising comparisons.
The parties are press companies. The plaintiff's publishing house publishes the BILD newspaper, the defendant publishes "die tageszeitung" (TAZ). In 2005 the defendant advertised the TAZ with a cinema commercial. In the first part of the commercial, an empty newspaper rack bearing the logo of the BILD newspaper can be seen in front of a newspaper kiosk described as a "Trinkhalle". A customer, dressed only in a vest and sweatpants, asks the owner of the kiosk: "Kalle, give me a newspaper", to which the owner replies: "It's out". When the customer asks, "What do you mean?", the kiosk owner wordlessly pushes a newspaper over the counter. The customer responds with the words, "What's that? Don't get me started, you" and angrily throws the TAZ back on the counter after glancing at the newspaper. The kiosk owner then takes out a BILD newspaper hidden under the counter and gives it to the customer. They both burst out laughing. In the second part of the commercial, a newspaper rack now filled with BILD newspapers can be seen in front of the "Trinkhalle". But the customer demands: "Kalle, give me taz". The kiosk owner is so taken aback that he does not comply with this request. Now the customer bursts out laughing and the kiosk owner joins in. At the end of both parts of the commercial the text is inserted: "taz is not for everyone. That's OK." The plaintiff considers this commercial to be unfair comparative advertising under § 6 para. 2 no. 5 UWG and therefore claims against the defendant for injunctive relief, the provision of information and a declaration of its liability for damages. According to this provision, a person who advertises comparatively acts unfairly if the comparison disparages or denigrates the goods of a competitor.
The District Court and the Court of Appeal largely upheld the action. The Court of Appeal held that the defendant exceeded the limits of what was permissible under competition law with the commercial, even if it was characterised by wit, irony and sarcasm. It attempted to highlight its newspaper in advertising by painting a damning picture of the bleak social structure and the (lack of) intellectual abilities of a typical BILD newspaper reader, thereby disparaging the readership and the plaintiff's newspaper without any objective reason.
On the appeal of the defendant, the Federal Supreme Court reversed the decisions of the lower courts and dismissed the action.
According to the Federal Court of Justice, the assessment of the permissibility of an advertising comparison must be based on the presumed perception of an average consumer who is reasonably well-informed, observant and circumspect and who is increasingly accustomed to pointed statements in advertising. A humorous or ironic allusion to a competitor or its products therefore only constitutes an impermissible disparagement if it exposes the competitor to ridicule or ridicule or is taken literally and thus seriously by the addressees of the advertisement and is therefore understood as a devaluation. According to the Federal Court of Justice, the defendant's commercial was not to be regarded as anti-competitive. It merely expressed that the TAZ was "not for everyone", i.e. that it did not appeal to mass tastes. The average viewer would recognise that the depiction was a humorous exaggeration intended to attract the attention of the advertising addressees and not to devalue the BILD newspaper or its readership across the board.
Judgment of the Federal Court of Justice of 1 October 2009 - I ZR 134/07 - Gib mal Zeitung!
Hamburg Regional Court - Judgment of 7 April 2006 - 408 O 97/06
Hamburg Higher Regional Court - Judgment of 11 July 2007 - 5 U 108/06, AfP 2008, 387
Source: Press release of the BGH
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: m.ullrich@goldberg.de
