In proceedings involving two supermarket chains brought under the Unfair Competition Act for alleged unfair commercial practices, the Supreme Court ruled that the slogan "HOFER PREIS, ALLES ANDERE IST OVERPRICED" (Hofer price – Everything else is overpriced) constitutes blatant advertising – a promotional statement without any credibility or validity. It is therefore not misleading not disparaging in relation to other market participants.
The court ruled that the advertising statement would not be taken literally by the general public. Essentially, it would only be understood as a claim regarding an affordable shopping opportunity in the defendant's stores. The creative combination of German and English comes to the fore in the melody, allowing for a double rhyme.
Advertising is considered blatant, if a claim is made in such an exaggerated manner that an average consumer does not take it seriously. In the Supreme Court’s opinion certain exaggerations can hardly be avoided when using verses or rhymes for advertising purposes. Therefore, they are to be treated with greater leniency than other statements and they should rarely be interpreted in the strict literal sense. It is precisely the catchy, suggestive wording used in such advertising jingles and slogans that makes it easily recognisable to the average audience that they do not say anything substantial in terms of content and are therefore not to be taken literally.
To a certain degree, the present decision of the Supreme Court is at odds with the court's own established case law (see RIS-Justiz RS0078274, RS0078301 and RS0077872), according to which
- a factual claim should always be assumed in cases of doubt as to whether blatant advertising or a serious factual claim is given (the so-called ambiguity rule), and
- even blatant advertising that contains a serious, factually verifiable core of facts can be misleading if it proves to be incorrect.