Germany

• Act on Comparative Advertising and to Amend Provisions of Competition Law) of 1 September 2000
  • Article 1 Amendrnent to the Act Against Unfair Competition
  • Article 2 Amendment to the Act on Advertising in the Field of Healthcare
  • Article 3 Amendrnent to the Copyright Act
  • Article 4 Entry into Force

Act
on Comparative Advertising and
to Amend Provisions cf Competition Law")

cf 1 September 2000

The Federai Parfiament has passed the following Act:

Article 1
Amendrnent to the Act Against Unfair Competition

The Act Against Unfair Competition in the published revised version in the FederaiLaw Gazette, Part Hl, Cateqory Number 43-}, as last arnended by Article 4 of the Act of 27 June 2000 (Federai Law Gazette I p. 897), shall be amended as follows:

1. Section 2 shall be replaced by the following provision: "Section 2

(1)

Comparative advertising shall be any advertising which explicitly or by implication identifies a competitor or goods or services offered by a-competitor.

(2)

Comparative advertising shall constitute a breach òf honest practice within the' meaning of Section 1 where the comparison

1. does not relate to goods or services meeting the same needs or intended far the s~me purpo~e;
2. does not relate objectively to one or more rnaterial, relevant, verifiable and representative features of those goods and services or to their price: .

~) This Act serves to implement Directive 97/55/EC of the European Parliament and of the Council of 6 October 1997 amending Directive 84/450/EEC concerning misleading advertising so as to include comparative advertising (OJ L 290 p. 18-of 29 October 1997), as well as Article 5 (b) of Directive 92/28/EEC of the Council of 31 March 1992 on the advertisinq of rneoicinal products far human use (OJ L 113 p. 13 of 30 Apri11992).

1. creates confusion in the market piace between the advertiser and· a competitor or between the goods or services they offer or their trade rnarks, trade names or other distinguishing rnarks:
2. unfairly takes advantage of, or unfairly harms, the. reputation of a ·trade mark, trade name or other distinguishing marks of a cornpetitor:
3. discredits or denigrates the goods1 services, activities , or personal or business circumstances ota cornpetitor; or
4. presents goods or services as imitations or replicas of goods or services bearinq aprotected trade mark or trade name.

(3) If the comparison refers to an offer at a special price or other special conditions.vclear indication shall ,'b~ given of the date ori which the offerends and, where this does not yet apply, the d~te on which the offer begins. If the offer applies only so long as the goods .or services are available, this shall be clearly indicated.

2. The following sentence shall be added to section 3: "Staternents' conceminq business circumstances within the rneanìnq of the first

k

sentence shall also be deemed to be statèments in the context of comparative advertising."

3. The folloyving sentence shall be inserted after section 4 (1), first sentence: "Staternents concerning business circumstances within the meaninq of the first sentence shall afso be deemed to be staternents in the conìext of comparative advertising.n

4. Section 6c shalJ be worded as follows: "Section 6c

Whoever ·in the course of business activity undertakes by himself or through others to induce non-merchants to purchase goods, commerciai services or rights by promising that they would acquire special advantages either fram the inducer himself or fram a third person in the event of their inducing other persons to conclude such transactians, being persons who, according to this type of advertising, are in turn to acquire such advantages far sirnilarly soliciting further purchasers, shall be liable to imprisonment cf up to twa years or a fine."

5. In section 24 (2), first sentence, the words "no piace of residence" shall be replaced by the words "neither a business establishment nor a piace of residence".

Arìicle ·2

Amendment to the Act on Advertising