The Original – or not?

An advertising statement containing the claim "THE ORIGINAL" is misleading if the advertiser cannot claim the corresponding unique selling point – in the present case a placement platform for pensioners – for itself.

The advertising operator of a placement portal had already been active in Switzerland for several years and had offered a job placement portal for active pensioners via the domain rentarentner.ch. When expanding the placement offering to the German market, this operator advertised, inter alia, on the internet and in various social media with the following statements:

"THE ORIGINAL"

and

"the world's first online platform – and thus the original – on which you can as a pensioner offer your services and have yourself hired"

Since comparable placement portals already existed in Germany, a competitor felt compelled to take action against these advertising statements. With success. After the first instance preliminary injunction was initially overturned, the appellate court confirmed the competitor's claim for discontinuance.

Court decision on the advertising claim "THE ORIGINAL"

By its judgment of 10 April 2015 – Az.: 2 U 132/14 the Hanseatic Higher Regional Court (OLG) in Bremen issued the preliminary injunction again and ordered the portal operator to cease advertising statements that present it as "THE ORIGINAL".

The advertising measure, insofar as it contains the claim "THE ORIGINAL" or "the world's first online platform – and thus the original – on which you as a pensioner can offer your services and have yourself hired", is unfair and is subject to the competitor's claim for discontinuance. The overall impression of the advertising statement was decisive. A claim was therefore to be assessed as misleading if the content of the claim, as understood by the relevant public addressed, did not correspond to the actual circumstances.

The average intelligent and informed consumer would understand the claim "THE ORIGINAL" to mean that the advertiser was the first placement service provider to conduct business activities involving the placement of services by seniors on an online platform. The word original in common usage stands for "genuine" as opposed to a forgery or imitation. This is associated in advertising for commerce with the idea that the business idea had been invented and developed by the advertising portal operator. This impression was reinforced by the use of the definite article "the" (original). In this way, the public was suggested the singular nature of the product and thus a unique selling point which in truth does not belong to it. At the same time, the "genuineness" that belongs to the original is typically associated with a higher degree of quality and experience than mere imitation by later providers.

Since the advertiser demonstrably did not operate a (service) placement platform as the first provider, the court was correct in concluding that it also cannot describe its offering as "the original".

Conclusion

Advertising with the claim "THE ORIGINAL" is not per se impermissible. However, it is crucially a matter of how the relevant public addressed understands such a statement. If the content of the advertising statement does not correspond to the facts, it is misleading. This is particularly the case if it is not actually "THE ORIGINAL" and if other competitors have also been offering comparable goods or services for a longer period.