At a glance
- Comparative advertising is generally allowed
- Compare only verifiable, representative features
- No denigration, no imitation claims
Comparative advertising has been permitted in principle in Germany since the late 1990s. It exists where advertising explicitly or by implication identifies a competitor or its goods or services. Whether it is allowed depends on the exhaustive criteria of Section 6(2) UWG. A comparison is unfair if it:
- does not relate to goods or services meeting the same needs or purpose,
- does not objectively compare material, relevant, verifiable and representative features or price,
- creates a likelihood of confusion,
- takes unfair advantage of or impairs the reputation of a mark,
- denigrates the competitor,
- presents goods as imitations of goods bearing a protected mark.
It must not mislead (Section 5 UWG). Use of a competitor’s mark in a permissible comparison does not infringe the mark.
Practice: state date and source of price comparisons, disclose test conditions for performance claims, and be careful with compatibility statements.
