Timeshare Directive, Article 5 Timeshare Directive, Article 5, 1. Timeshare Directive, Article 5, 1. Timeshare Directive, Article 5, 2. Timeshare Directive, Article 5, 2. Timeshare Directive, Article 5, 2. Misleading and Comparative Advertising Directive, Article 4 Misleading and Comparative Advertising Directive, Article 4 Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6 Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 7

ECLI:DE:OLGK:2017:0919.6W97.17.00

Using a slogan claiming to have the best network may be misleading, if it can be interpreted by market users in an ambiguous way, not corresponding to reality. The use of registered marks in permitted comparative advertising in the sense of Directive 2006/114 EC is only permissible if the advertising is not misleading.

The telecommunications company 1&1 used the slogan "the best network is at 1&1" from August to September 2017 in print media, on posters, on the Internet, and in TV commercials. In the commercial, a representative of the provider 1&1 roped down on a high-rise building wall to cover a large Telekom poster with a new 1&1 advertisement.

Telekom Deutschland applied before the Landgericht for an injunction to cease the use of this slogan on its advertising, because it was misleading. The Landgericht initially rejected the issuance of the injunction, and Telekom filed an immediate complaint before the Oberlandesgericht.

A legal issue was if the advertising was misleading in the sense of article 5 paragraph 1 sentences 1 and 2 no.1 UWG. The Oberlandesgericht found it was misleading, because it ambiguously could induce the consumer to think that the defendant was the owner of an independent network, which was better than that of its competitors, and this was not according to reality. Actually, the defendant was using the networks of other companies, including the plaintiff’s one.

A further legal issue was to determine if the defendant was using comparative advertising in a permissible way, according to article 6 paragraph 2 UWG. However, this rule does not include the condition provided in article 4 and 4 in light of Directive 2006/114/EC, which pointing to articles 6 and 7 of Directive 2005/29/EC, stipulates that comparative advertising is only permissible if it is not misleading. The Oberlandesgericht had to interpret the German legislation in the light of these European rules and found that the comparative advertising was misleading (inaccurate in content), and thus, to be prohibited.

The last issue to be assessed, was if the defendant was allowed to make use of the applicant's trademarks, or similar trademarks in its advertisement. However, based upon article 5 paragraph 1 and 2 of Directive 2008/95/EC the Oberlandesgericht decided it had to be prohibited if the defendant was using them to identify its own services.

The Oberlandesgericht granted the injunction application, prohibiting the defendant to use the litigious slogan in its advertising.

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Information dated September 2017: The decision is not final. The defendant may file an objection against this decision.