If over the course of its history a company was split up, advertising featuring the company’s history may be misleading. That was the verdict of the OLG Frankfurt (Higher Regional Court of Frankfurt) in a recent ruling (6 U 167/14).
GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: Tradition and history can be vital aspects of many companies’ advertising efforts. However, advertising featuring a company’s corporate history is not legal in each and every case. If, for example, the company was split up over the course of its history, this type of advertising may be misleading.
That was the ruling of the Oberlandesgericht Frankfurt am Main. The OLG held that advertising a company’s decades-long corporate history may be misleading if, during the course of this history, there was a split between the advertising company and another company with the same name, and the fact of this spit is not sufficiently apparent to consumers. If the advertising features achievements or services pertaining to the period of time before the split, this could be misleading.
In the instant case, the two parties were competitors. Both companies had been founded or co-founded by the defendant but had since become two completely independent enterprises. Notwithstanding this, the defendant made use of advertising on its website featuring the company’s corporate history, including accomplishments and testimonials from before the split. The OLG Frankfurt took the view that this constituted misleading advertising.
It stated that for this kind of advertising to be permissible, it essentially needs to be possible to view the present company as practically the same entity as the former company despite all of the changes. The Court went on to say that there needs to be business continuity for this to happen. The OLG ruled that a reference to the company’s name tradition was acceptable if it was clear that this refers to a name tradition and not a company tradition. Consequently, the defendant was found to have violated Germany’s Gesetz gegen den unlauteren Wettbewerb (UWG) [Act Against Unfair Competition] and thus competition law.
There is always the possibility of actual or merely supposed infringements of competition law occurring when it comes to advertising. One ought to consult a lawyer who is qualified in the field of competition law to fend off and enforce claims.
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