Most of the day we are surrounded by advertisements. Be it on the radio, on advertising banners on the way to work or on television in the evening. Sellers try to “lure” their customers with promising words. So that the decision to buy falls on their product, they advertise it with creative slogans, some of which are excessively exaggerated, but sometimes even obviously not true. Is there a limit here? What criteria are used to decide whether an advertising slogan is permissible?
Impression of the consumer is decisive
Competitors in particular are to be “outpaced” with promising slogans, but when it comes to the question of whether the respective advertising is permissible, the point is not the view of the competition, but whether the consumer can and may consider an advertising slogan to be truthful or not it is an obvious and recognizable exaggeration or untruth. The Supreme Court (OGH) recently made this clear.
Untrue or exaggerated?
If the advertising promise is not true in reality, it must be questioned whether it is a blatant promotion that nobody takes literally (washing machines live longer…, the tenderest temptation…). The focus here is on the average consumer in the respective industry. The next step is to check whether it is an obvious impossibility or an untruth. In the second case, whether the promotion is completely wrong or partially correct (exaggeration). So the question is what impression is suggested to the consumer.
For example, the additional claim made in an advertisement to be “number 1” in a certain area can be prohibited if this cannot be justified in such a general form by the studies specified for it (published in OGH 4 Ob 99 /21v).
Conclusion : The question of whether a certain advertising slogan is permissible depends on whether the average consumer in the respective branch can and may consider the advertising slogan to be truthful or whether it is an obvious and recognizable exaggeration or untruth. Blatant promotions are therefore not unlimitedly permissible. It depends on the impression of the customers. In any case, caution is advised for advertisers: If a general statement cannot be justified by studies, it may be inadmissible as advertising and can be prohibited, which is undoubtedly associated with costs.
For further information, please contact:
Christian Anetter , Partner
Frimmel | Anetter, Vienna
e: ta.tkeridthcer@rettena
t: +43 463 50 0002
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