SLK: "Comparing apples with oranges".

Comparing apples and oranges is not a very good thing, apart from nutritional issues. So also in the case of the price comparison "District heating: 1 kWh = 16.74 Rp.; Fuel oil: 1 kWh = 7.5 Rp." To contrast a heat price with a fuel price, the complainant complained, was just as unlawful as the assertion "Since the heating operation of these district heating plants is not sufficient for the entire heat supply, a substantial share is taken over by oil heating." The First Chamber of the SLK upheld the complainant in both cases. According to the Federal Supreme Court, in comparisons and especially in price comparisons, only truly comparable things may be compared with each other (BGer 4A_647/2014 dated 15.4.15). Art. 3 para. 1 lit. e of the Unfair Competition Act (UCA) also requires that such advertising must not be incorrect or misleading and must be directly comprehensible to the average consumer. The statement complained of, for its part, is a factual assertion that a respondent must prove. The PR article of the telecommunications industry cited as evidence is not sufficient for this purpose. The complaint was upheld on both points.

Freedom of imitation

However, the complaint of an ice hockey web radio station accusing a competitor of having copied texts, layouts, logos and structure for its website was rejected. There is no general prohibition under fair trading law against copying the services of others. The Federal Court has repeatedly held that services or work results that do not enjoy intellectual property rights protection - in particular trademark or copyright protection - may in principle be used and imitated by anyone. However, the imitation must not lead to confusion with goods, works, services or the business operations of another (Art. 3 para. 1 lit. d UCA). Although a certain similarity could not be denied, the First Board could not find an overall infringement of either unfair competition law or copyright law.

Playing with fear

The advertising of a fictitious X-ray institute for e-bikes with fictitious X-ray images was misleading and pure scaremongering, the complainant said. The e-bike distributor took a different view and was of the opinion that the humorous content of the campaign was already clearly recognizable at the first glance at the fictitious X-ray image. According to Art. 4 (2) of the Code of the International Chamber of Commerce (ICC), marketing communication should not play on fear without a justifiable reason. This cannot be ruled out in the present case, as the oversized envelope bore the fictitious return address "Röntgeninstitut Oberwangen - Röntgen, Mammographie, Ultraschall" and the note "Röntgenaufnahmen - Bitte nicht knicken!". The First Board did not conclusively clarify this issue, since the e-bike distributor credibly assured that it would no longer continue this type of campaign (Art. 9 para. 1 lit. b SLK Rules of Procedure).

Bioresonance or bullshit?

Can "electrosmog chips" actually convert harmful cell phone radiation into positive bioresonance radiation and "food chips" improve the taste of food? The complainant was of the opinion that this was "bullshit". The terms used were not scientifically proven, he said. In addition, he was of the opinion that only modes of action that have scientific proof may be advertised. In the opinion of the SLK, this is not the case, since otherwise it would also no longer be permissible to advertise homeopathic remedies. To judge whether electrosmog and food chips are effective or just bullshit is not within the competence of the Fairness Commission. Therefore, the First Board only had to judge whether the statements of the advertisement objected to by the complainant were misleading. There was no indication of this. The appeal was dismissed.