eBay: comparative advertising – breach of competition law?

With offers on eBay and similar platforms, the question arises whether one may advertise with statements such as 'No Fr.' or whether the use of such a designation constitutes impermissible comparative advertising. The Regional Court (LG) Munich took a position on this question.

A seller distributes cosmetic products via the eBay trading platform. The offer of anti-wrinkle facial pads carried the inscription: '(No Fr.)'.

According to her submission, the claimant has been distributing cosmetic products under the product brand 'Fr.' for a long time.

She takes the view that there has been impermissible reputation exploitation. The statement 'No Fr.' is presented as an eye-catcher in order to attract customers.

The court's decision

The Regional Court (LG) Munich did not follow the claimant's view. The judges in Munich rejected judgment of 06.05.2016 – Az. 17 HKO 21868/15 a breach of competition law.

A breach of competition law through reputation impairment was not found, as comparative advertising that was not rejecting or critical in nature had not been used.

Reputation exploitation was also rejected. A prerequisite for reputation exploitation is that business circles transfer the reputation of the competitor's products to the advertising party's products. In this case, the use of the term 'No Fr.' was not intended to transfer the – allegedly – good reputation of the claimant's products to the products of the eBay seller. Moreover, the addition 'No Fr.' was used to make clear that these were not Fr. products and thereby to distinguish itself precisely from the products of the claimant.

Conclusion

Comparative advertising need not per se constitute a breach of competition law. Nevertheless, caution should be exercised with comparative advertising. In case of doubt, legal advice should be sought.