No network is not an excuse

Advertising statements must be true, otherwise they are misleading. This is different where advertising-typical exaggerations are concerned, which are recognisable as such and are therefore not taken seriously. The Higher Regional Court (OLG) Frankfurt/Main had to decide on the factual content of the statement "Kein Netz ist keine Ausrede mehr", whereby a humorous context and the consumers' experience both had a decisive influence on the outcome.

The operator of a mobile network advertised its services with the statement "Kein Netz ist keine Ausrede mehr". The statement was intended as a humorous allusion to the "no coverage" problem that frequently occurs in mobile communications and was also used as such in the relevant advertising materials. A competitor took the view that the advertising statement should be understood to mean that the advertiser had complete nationwide network coverage without any dead spots, which was not the case. The competitor therefore sued the advertiser for an injunction against the above statement.

The court's decision

The Higher Regional Court (OLG) Frankfurt/Main ruled by Beschluss vom 16.06.2015 (Az. 6 U 26/15) that the decision of the lower court was correct in holding that consumers would not understand the statement placed in a humorous context to mean that the advertiser had complete network coverage. The average consumer perceives Werbung against the background of his or her knowledge and experience, which is why he or she is familiar with the existence of dead spots. This knowledge relativised the understanding of the advertising statement in question. Moreover, the humorous presentation in the advertising made it clear that no reference was being made to the novelty of 100 per cent network coverage.advertisingin the light of his knowledge and experience; this familiarity with coverage gaps thus qualified the meaning of the advertising statement in question. Moreover, the humorous presentation in the advertising made clear that what was not being conveyed was any claim of 100% network coverage.

Conclusion

With this decision, the Higher Regional Court (OLG) Frankfurt/Main continues its previous case law ("Immer Netz hat der Netzer""Immer Netz hat der Netzer") continues and, as before, places emphasis on the knowledge and experience of the consumers addressed. It must be borne in mind, however, that in the case of ambiguous statements, the advertiser must always accept the less favourable interpretation against itself. The ambiguity was ruled out here solely on the basis of the assumed store of experience of the consumers and the humorous note of the allusion. However, this is ultimately a matter of judgment and cannot readily be transferred to other sectors and services.