Comparative advertising in Austria: legal criteria, evidence and litigation risk

Comparative advertising is present when a competitor, or the goods or services offered by a competitor, becomes identifiable directly or indirectly. A name is therefore not required. A logo, product shape, market share, recognisable colour scheme or combination of details may make the competitor identifiable.

The competitive relationship should be clarified first. The offers must actually relate to each other in the relevant market. A comparison may concern goods, services, distribution channels or defined service levels. Where offers serve different purposes, the common benchmark must be explained clearly or the audience may assume a false equivalence.

The firm’s Austrian comparative advertising article explains the general structure and Supreme Court practice. This specialist article concentrates on campaign approval and evidence management.

A reliable comparison starts with the offers actually being compared. Product name, model, service scope, tariff, equipment level and availability belong in the internal comparison table. Comparing an outdated version or a package with only partial equivalence may be misleading even if individual figures are accurate.

The goods or services must meet the same needs or serve the same purpose. They do not have to be identical in every detail, but the common use must be clear to the audience. Different contract terms, delivery scopes or service levels should not be silently left out.

For goods with a designation of origin, section 2a(2) UWG requires reference to goods with the same designation. The rule prevents products with protected origin information from being presented as equivalent to differently designated goods.

The comparison must concern one or more material, relevant, verifiable and representative features. Price may be such a feature, but it is not automatically sufficient. Delivery time, reach, service scope, durability or measurable quality values may also work if the method and benchmark can be explained.

In practice, verifiable means that a third party can follow the statement from the preserved documents. For every advertising line, keep raw data, method, reference date, selection of competing offers and calculation. An internal presentation with rounded results is not a complete evidence chain.

In 4 Ob 99/21v, the Austrian Supreme Court noted that in comparative advertising the advertiser will regularly have to assert and prove the accuracy of factual claims. This issue should be planned before the first media placement. The advertising claims self-check helps organise the statement, audience and evidence.

The main statement, images, tables, stars, colours, logos, footnotes and linked landing page work together. A qualification helps only if it is timely, legible and clear. A small footnote cannot reliably correct a broad main statement.

The Supreme Court focuses on the overall impression and on how the addressed audience understands the advertising. Where wording is ambiguous, the less favourable interpretation for the advertiser may matter. Marketing should therefore ask not only whether a figure is correct, but also what conclusion the audience draws from it.

Check the time period and market segment. A result from one region, one month or a limited product group should not look like a current comparison for the whole of Austria or the full range. Prices and services change, so the evidence file must be updated with the campaign.

Section 2a(1) UWG expressly refers to section 7 UWG. A comparison must not disparage or denigrate the competitor, its mark, name, goods or services. Factual differences may be stated. Mocking additions, demeaning imagery and unsupported value judgments can move the communication into a separate legal risk area.

Section 9 UWG also remains relevant. The design and wording must not create confusion between businesses, marks, signs or offers. A competitor’s mark may be necessary to identify the comparison, but it must not suggest a business connection or approval.

The articles on disparaging statements about competitors and injunctions and interim relief explain these risks separately.

Before publication, prepare a comparison table. It should identify the own offer, the competing offer, the feature, reference date, source and permitted wording. Also record which qualification must be visible and where the detailed explanation appears.

Keep the version that was actually approved. This includes advertisements, videos, social media versions, landing pages, newsletters, print materials and audience settings. If an agency changes the campaign, review the new version against the table and evidence again.

The table does not replace legal review. It prevents a data sheet, draft and published wording from silently diverging. In dynamic online campaigns, time, channel and version must be identifiable.

After a challenge, preserve the complete letter, time of delivery, challenged version and all attachments. Distinguish an out-of-court demand from a court document. Do not assess the requested undertaking based only on a short advertising excerpt.

An injunction and interim relief may become relevant where proceedings are threatened. The legal basis, risk of repetition, urgency and evidence depend on the individual case. Superiority advertising under section 2 UWG is related, but it is not the same review path.

A business challenging a competitor’s advertising should first document the full comparison and objective reference points. A public counterclaim can create new risks. Factual preservation is the better starting point for the next review.