Cheating the same as pulling someone's leg?

In the present case, the telecommunications companies Telekom and Arcor disputed the competition law permissibility of an advertising statement. The Higher Regional Court (OLG) Frankfurt am Main had to decide whether 'cheating' customers was to be equated with 'pulling the wool over' customers' eyes.

Telekom obtained a competition law injunction against its competitor Arcor by way of interim relief proceedings before the Regional Court (LG) Frankfurt a. M., in which Arcor was prohibited from claiming in the course of a staged advertising conversation with a potential customer in commercial dealings:

(…) if the potential customer would rather throw their money down Telekom's throat – which was overpaid money – instead of taking Arcor's inexpensive tariffs, then he should let himself be cheated.

Subsequently, despite the interim injunction that had been issued, Arcor used the formulation '(…) then he should let himself be pulled the wool over his eyes' instead of the formulation '(..) then he should let himself be cheated'. Telekom thereupon immediately filed an application for sanctions with the LG and subsequently also with the OLG (OLG) Frankfurt on the basis of its obtained interim relief order. In contrast to Arcor, it was of the opinion that 'cheating' and 'pulling the wool over someone's eyes' should be equated.

Court's decision
The Higher Regional Court (OLG) Frankfurt a. M. confirmed the lower court decision in itsBeschluss vom 22.10.2008 – Az. 6 W 143/08and rejected Telekom's application for sanctions.

A telecommunications company that accuses its competitors of 'cheating' customers in an advertising conversation with a potential customer acts unlawfully. By such a statement, the consumer gains the impression that the competitor is defrauding the customer. 'Pulling the wool over someone's eyes', however, does not create this disparaging impression. Rather, it follows that someone is being made fun of or deceived without damage thereby arising.

Conclusion

Ridicule of a competitor recognisable to the consumer through advertising exaggerations is not unlawful under competition law. As soon as a competitor spreads untruths or serious accusations about their competitor, or uses exaggerations not clearly recognisable to the consumer, the advertising statement becomes unlawful under competition law. This again demonstrates that the boundaries of unlawfulness under competition law are fluid. There is always a need for legal advice in such cases.