Fairness Commission reprimands Siroop campaign, among others

This was upheld, as were seven of the complaints - two each for disregarding the "stop advertising" sticker, for unlawful sending of e-mail advertising and for gender discrimination, as well as in the case of an offer for a register entry disguised as an invoice.

Of the four complaints of gender discrimination, two were directed against the disparagement of women and two against the disparagement of men, and two each were approved and rejected - equally divided between the two genders.

Approved were the cases of a shop window sculpture that made reference to the "Nose Art" on airplanes of the 1940s, as well as the subject of a man with a naked upper body for the advertisement of an iron. On the one hand, there was no natural connection between the subject and the headline "Heisses Gerät," and on the other hand, the man being doused with a syrup-like liquid was portrayed as a will-less and manipulable object.

The subject of the woman riding a bomb with her legs spread was objected to as degrading, as it allowed an unobstructed view of the lady's crotch.

As loud On the other hand, both the clearly humorous depiction of a man wearing a brassiere were judged:

Also loud is the subject of a woman dressed only in chain mail, although according to SLK this was a borderline case. Although the respondent's assertion that such chain mail is usually worn on bare skin in the security and design sector was considered credible, the associated reference to "attractive offers" was judged to be at least ambivalent. All in all, the Third Board let mercy prevail over justice, so to speak, in this case.

Price announcement: just a bait-and-switch offer?

One complainant considered both the communicated promotional prices and the advertised quality to be unfair - on the one hand, he saw this as a violation of the general clause of Art. 2 of the Unfair Competition Act (UCA)1), and on the other hand, an inadmissible bait-and-switch offer within the meaning of Art. 3 Para. 1 lit. f UCA. The respondent contested this and also denied its opponent the right to appeal, so that the appeal should not be admitted at all. The Third Chamber of the SLK followed his argumentation in that price undercutting is not generally prohibited. Unfairness is only committed by those who thereby displace the competition or offer their goods below cost price and thus violate Art. 3 para. 1 lit. f UWG (systematic approach, special emphasis, etc.). The SLK dismissed the complaint, but upheld it in its entirety. In contrast to the right to bring an action under the UCA, the complaint before the unfair competition commission is a popular complaint, which does not require any personal involvement. The SLK will only not act on a complaint if it is, for example, wanton, futile or insufficiently substantiated (Art. 9 para. 1 Rules of Procedure). The fact that the parties are currently engaged in other legal disputes with each other cannot change this. In this respect, the Federal Supreme Court has confirmed that the defense of "unclean hands" has no basis in Swiss fair trading law (BGE 129 III 426, E. 2).

13 complaints and one sanction

Of the total of 13 appeals, the Third Chamber of the SLK approved 7 and dismissed 4 on June 28, 2017; it referred another appeal to the plenum of all three chambers on November 8, 2017 and requested additional evidence in one appeal. In addition, the Third Chamber approved a sanction against the Dianetics Center Basel of the Church of Scientology. As always, the detailed reasons for all decisions can be found on the website Fair-advertising.ch in the "Decisions" section. You can access the explanations (incl. PDF) of the cases discussed here via this Direct link.