Advertising is allowed to sharpen, exaggerate, and load up emotionally. It is not allowed to assert objectively incorrect facts or make statements capable of deceiving. Where exactly the line runs is decided by the Austrian UWG — and in practice: by the Vienna Commercial Court and the competent regional courts in Austria, and on appeal by the higher courts.
When advertising is misleading
Advertising is misleading under the UWG when it is capable of deceiving the addressee on a point relevant to their commercial decision. Four conditions intertwine:
- The advertising contains concrete factual claims (not mere value judgements)
- These are objectively incorrect or at least ambiguous
- They are relevant to the commercial decision
- A non-negligible part of the addressed audience is misled by them
It does not matter whether anyone has actually been deceived — the mere capacity to mislead is enough.
Typical case groups in online commerce
Online shops are a preferred target of unfair-competition cease-and-desist letters. Frequent risk areas:
- Reference prices without an actual basis (fake “before” prices)
- Availability statements “in stock” although goods haven’t arrived
- Delivery times embellished
- Comparison values without a comparison basis
- Manipulated reviews or self-reviews without disclosure
- Property claims about the product that don’t actually hold true
- Guarantees whose conditions are concealed
Promotional exaggeration is permitted
Not every advertising exaggeration is prohibited. Promotional puffery that the average reader recognises as such and does not take as a serious announcement is part of legitimate competition. The line, however, is not always easy to see for non-lawyers. While statements such as “Austria’s best coffee” or “Austria’s best beer” are not treated as factual claims by Austrian Supreme Court case law, statements such as “the best notebook” or “the best and cheapest DIY store” are treated as serious announcements.
The line: as soon as you make quantifiable or verifiable statements (“30 % cheaper”, “tested by Stiftung Warentest”), advertising language turns into a factual claim — and that claim has to be demonstrably true.
Asterisk references are not a free pass
A common reflex: leave the misleading main statement in place and correct it with a small asterisk. In practice this works only under strict conditions. For a reference to effectively correct, it has to be:
- Clearly visible
- Legible in font size and contrast
- In immediate spatial connection to the main statement
- Contain the complete content of the clarification
Hidden or small-print references have been repeatedly held by the Austrian Supreme Court (OGH) to be inadequate.
Prevention beats cease-and-desist
The best defence against unfair-competition cease-and-desist letters is a legal review before publication — for advertising campaigns, online-shop texts, terms and conditions, newsletters and social-media posts. A pre-publication review costs a fraction of what court proceedings could cost.
This article is for general information and does not constitute legal advice in any specific case.
