Comparative advertising — i.e. advertising that directly or indirectly makes a competitor or their products identifiable — was for a long time blanket-prohibited in Austria. Today it is generally permitted, but tied to strict UWG conditions. Anyone who uses comparative advertising sloppily risks being targeted with a fee-bearing cease-and-desist letter from competitors or even being served directly with a lawsuit from the Vienna Commercial Court or one of the regional courts in Austria. Worse, such lawsuits are often combined with an application for a preliminary injunction.

When advertising is “comparative”

Advertising is comparative if it makes a competitor or the goods or services they offer directly or indirectly recognisable. It is enough if the target audience can identify the competitor — even if the name is not explicitly mentioned. Slogans like “better than the market leader” or “the alternative to X” are therefore comparative advertising.

The UWG conditions

Comparative advertising is only permitted if all of these conditions are met:

  • It is not misleading
  • It compares goods or services intended for the same need
  • It compares objectively one or more material, verifiable properties
  • It does not lead to confusion between the advertiser and the competitor
  • It does not disparage the competitor, their trade marks or activities and does not present them contemptuously
  • It does not exploit the reputation of the competitor
  • It does not present goods or services as an imitation of the competitor

If even one condition is missing, the advertising is unfair.

Common stumbling blocks in practice

  • Selective price comparisons — a few cheap own products are compared with a few expensive competitor products
  • Outdated comparison data — the competitor has long since cut the price
  • Comparing apples and oranges — different product classes or equipment variants
  • Implicit disparagement — words like “inferior” or “outdated” must absolutely be avoided
  • Adopting graphic elements of the competitor — likelihood of confusion
  • Concealing material differences that would change the comparison result

References to tests and ratings

Reference to independent tests — Stiftung Warentest, Konsument, trade publications — is permitted if:

  • the test result is correctly and completely reproduced
  • the source and test date are stated
  • the test is current (no ten-year-old test win in a TV spot)
  • the test criteria are relevant for the advertised use case

Truncations, omitted caveats or using only the logo without the test report are classics of misleading advertising.

Comparative advertising is a sharp sword — used correctly, a differentiation tool. Used incorrectly, a direct path to avoidable and costly legal disputes.

Pre-review pays off

Planned comparison campaigns can be reviewed before publication. That’s always cheaper than defending against lawsuits and preliminary injunctions after the fact.

This article is for general information and does not constitute legal advice in any specific case.