Compare, but Do Not Disparage

For a long time, comparative advertising was in principle forbidden in Germany. The Federal Court of Justice gave up this line in 1998, after a European directive of 1997. Today the law allows an ad to name a competitor, under conditions. The comparison must relate objectively to essential, relevant, verifiable and typical features, or to the price. It is unfair if it herabsetzt oder verunglimpft, disparages or denigrates, the competitor’s goods, activities or circumstances. In 2009 the court judged a TV spot for the newspaper taz. In it, a man at a kiosk asks for a paper, and the owner hands him a BILD from under the counter. The spot ends: taz ist nicht für jeden. Das ist OK so. The taz is not for everyone. That’s OK. The court allowed it. Humor is disparagement only if it exposes the competitor to mockery or ridicule, or if viewers take it literally as a put-down.

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