"The best power course of all time" is not an exclusive positioning claim!

The Regional Court of Appeal (Kammergericht) had to clarify the disputed question of whether the advertising statement of a language school "The best power course of all time" constitutes a misleading and thus unfair competitive exclusive positioning claim, or whether this advertising slogan is a recognizable puffery to the average consumer.

The provider of a foreign language correspondence course offers intensive language courses under the designation "Power courses". He subsequently advertised these with the advertising slogan

"The best power course of all time".

A competitor considered this advertising statement of his competitor to be anti-competitive, issued a cease-and-desist notice with penalty clause and demanded an injunction. He was of the opinion that the advertising slogan at issue was misleading the market about the quality of his courses compared to the competition.

Court's decision
ByOrder of 03.08.2010 – Az. 5 W 175/10, the Regional Court of Appeal (Kammergericht) Berlin dismissed the appeal on points of law. Decisive for the assessment of an advertising statement is how the relevant public understands the disputed advertising; however, the average informed, reasonably attentive and discerning consumer will normally recognize when an advertising statement is puffery.

A claim of exclusive positioning exists only if the relevant public recognizes in the advertising of the language course a concretely graspable factual claim that is subject to verification. This is not the case if the relevant public does not take the advertising statement seriously.

In the present case, the consumer recognizes from the combination of the two superlatives "the best" and "of all time" the puffery contained in this advertisement, which is a style element generally common in advertising.

Furthermore, the judges based their decision on the fact that the defendant was the only one offering foreign language courses under the designation "power course". The average consumer must therefore recognize that the statement is merely an advertisement of its own intensive courses and not an exclusive positioning claim.

Conclusion

Advertising statements which, although they describe an exclusive position, do so in a manner which is perceived by the relevant public as obvious puffery, are not anti-competitive. However, since the boundaries here are fluid, advertising statements should be reviewed in each individual case with regard to their competitive compliance.