Comparative advertising: Raccoon not allowed to overspray another colour

On 9. October 2014 the Higher Regional Court of Frankfurt (OLG Frankfurt) held that an advertisement showing a raccoon covering a red-coloured wall in spray-paint of another colour may be qualified as comparative derogative advertisement pursuant to Sec. 6 (2) Nr. 5 UWG (German Unfair Competition Act).

In the underlying case the defendant telecom company (O2) used the slogan ”what is blue and cheaper than Vodafone” in German newspapers to advertise its products and services. A motif next to the slogan showed a raccoon that sprayed the colour blue on an already red-coloured wall.

The plaintiff’s corporate design is characterized by the colour “red”, while the defendant’s one is characterized by the colour “blue”. The plaintiff sought an injunctive relief with regard to the described motif combined with any slogan that shows that the specific advertisement is meant to compare the prizes of the two telecom companies.

To begin with, the OLG Frankfurt pointed out that the discussed motif is to be qualified as “comparative advertisement” pursuant to Sec. 6 UWG, since it refers to the different products and services of the parties. Furthermore the Court held that the action in question derogates the plaintiff and its products and hence falls under Sec. 6 (2) Nr. 5 UWG. In the eyes of the OLG Frankfurt the advertisement in this case is nothing more than crude and aggressive. The motif only delivers the message that the plaintiff’s products and services belong to the past and that they will disappear eventually. Hence the motif is meant to humiliate the plaintiff’s products and services and therefore infringes Unfair Competition Law.