ABSTRACT
Germany’s restrictions even on comparative advertising that is truthful are also considerably broader than those of other European countries. Under the proposed directive, a comparative advertisement would be considered “unfair” if it leads to market confusion among the advertiser and his competitors or if it degrades a competitor or his goods or services. German law sows a virtual minefield of restrictions and prohibitions regulating the manner in which products or services can be marketed. Particularly striking, from an American point of view, are the broad strictures on advertising imposed by the German unfair competition law, under which courts have developed the strictest advertising laws in all of Europe. Determining how the “average” consumer reacts to a given advertisement is an empirical process under German law. The prospect of disparate treatment of advertisements of German goods versus those from other European countries also poses the risk that German law will disadvantage German producers.
