Higher Regional Court: Beware of advertising with superlatives for software

Claims about top positions are only permissible under strict conditions, especially in advertising for computer programs. This was decided by the Koblenz Higher Regional Court (Oberlandesgericht, OLG) in a recently published ruling from July 8 (Ref.: 9 U 443/25). A software provider had advertised its learning management system as "the simplest and most efficient". The court found these statements to be misleading and therefore anti-competitive. The reason: such superlatives have an objectively verifiable factual core. According to the Unfair Competition Act (UWG), they are therefore only permitted if they can be proven. The defendant company was unable to do so.

Efficiency can be proven, for example, by time savings or technical standards, the OLG clarified. Simplicity can be measured by criteria such as user-friendliness or the number of clicks required. As the advertising provider was unable to provide any evidence for its statements in this case, the Koblenz judges considered the claims made to attract customers to be misleading.

The plaintiff and the defendant are competitors in the field of digital training. The company that ultimately lost out advertised its LMS on its website and in Google ads using the slogans in question. The plaintiff issued a warning and went to court, as the defendant refused to issue a cease-and-desist declaration.

Significant potential for damage

At first instance, the Regional Court of Mainz dismissed the plaintiff's application for a temporary injunction in summary proceedings (case no.: 12 HK O 9/25). It did consider the advertising to be an infringement of competition law. However, the judges in Mainz considered the action to be inadmissible as it was possibly an abuse of the law. This was because the plaintiff had set the contractual penalty demanded in the warning letter too high and had also set the object value unreasonably high.

The Higher Regional Court has now upheld the plaintiff's appeal and overturned the judgment from Mainz. It considered the advertising to be a clear breach of competition law and denied the abuse of rights assumed by the Regional Court. The judges in Koblenz did not consider the contractual penalty of EUR 10,000 demanded in the warning letter and the object value of EUR 30,000 to be manifestly excessive. They pointed out that the plaintiff had only demanded such a sum once and that the accusation of abuse of rights under the UWG presupposed repetition. In addition, such superlative advertising had the potential to cause considerable economic damage to the competitor.

No protracted proceedings

The defendant also argued that the action was an abuse of rights because the plaintiff had waited a long time. The advertising had already been online for some time. The OLG disagreed, as the applicant had argued that it had only learned of the advertisement shortly before the warning. There was no general obligation for competitors to monitor the market.

The Koblenz judges also did not consider the fact that the applicant had almost completely exhausted the appeal and statement of grounds deadlines to be a "sluggish approach" or an indication of a lack of urgency. They confirmed the urgency of the proceedings, which is generally assumed in the case of competition law infringements. The defendant had not been able to refute this assumption. For IT lawyer Jens Ferner, the decision shows "that competition law also sets clear limits in digital marketing". It is important to react to warnings in good time to avoid costly proceedings.

(nen)