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Company A is doing an aggressive marketing strategy to undermine competition by saying they are better due to such and such factors.

Below such a remark they said, "Don't buy from Company X"

Company A obviously was smart enough not to make any false claims but anyone that reads the marketing material would indirectly have a false picture about company X.

Could company X make a successful defamation lawsuit against company A?

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    What has Company A said, and how does it create a false picture of Company X? There's no way to reliably assess defamation liability with so little detail.
    – bdb484
    Commented Feb 15, 2022 at 17:46

2 Answers 2

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Could a phrase "Don't buy from X" with indirectly implied material be considered defamatory?

No. The phrase is only an order, wish, or instruction, which is different from making a direct or veiled statement of fact. Even in jurisdictions where a statement of opinion could be actionable, a stated wish of that sort cannot be construed as defamatory.

anyone that reads the marketing material would indirectly have a false picture about company X.

It depends on the contents of the marketing material, on which you did not elaborate. Persuading the customers on the basis of truthful representations as to why X's product is better than A's does not mean that people have a false image about X.

The context and exact wording of someone's statements could amount to omitting and/or juxtaposing facts in a way that conveys some falsity, but your description gives no indications of that being the case here.

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  • and your first statement is wrong in Germany: you are not allowed to make such a statement in an advertisement, see §6 UWG
    – Trish
    Commented Feb 15, 2022 at 20:13
  • @Trish "your first statement is wrong in Germany" You not only confuse between the concepts of defamation and false advertisement (or even disparagement), but also fail to realize that the OP did not give enough elements that support your conclusion that company A violates §6 UWG. Commented Feb 15, 2022 at 20:47
  • §6 UGW (2)4: den Ruf des von einem Mitbewerber verwendeten Kennzeichens in unlauterer Weise ausnutzt oder beeinträchtigt, - To bring the fame of a competitor into disreputation in an illegal manner. [which is a lot] and 5: "die Waren, Dienstleistungen, Tätigkeiten oder persönlichen oder geschäftlichen Verhältnisse eines Mitbewerbers herabsetzt oder verunglimpft oder" - to speak ill of the goods of a competitor or claim the own ones as better.
    – Trish
    Commented Feb 15, 2022 at 21:15
  • @Trish You still fail to establish how a comparison or preference on the basis of "such and such factors" necessarily entails unlaute Weise. Commented Feb 15, 2022 at 21:27
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    @Trish The OP asks if there is defamation, which is not related to (possible) violations of advertising laws.
    – SJuan76
    Commented Feb 15, 2022 at 22:06
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in that sheme was totally illegal as comparing advertisement until 1st September 2000 and since then is severely limited under §6 UWG (law against unfair competition):

  • You are only allowed to compare items of the very same kind. For example "Widget A is 20% cheaper in my store than everywhere else!" is allowed but "Widget B is the cheapest of all Widgets!" as you compare different kinds (even if they were all TVs - different brand? Then are different kinds!)
  • You are only allowed to use relevant and objective factors. Taste is not objective and thus you can not say "Our Burgers taste better" is banned, just as much as "Our Widgets have one more (unnecessary) feature"
  • The advertisement results in the two Widgets being confused for one another. So "Widget A, the Next Step from Widget B" is banned.
  • Using the fame of another brand is illegal. So saying "Widget A, as good as [famous Widget B]" is not allowed.
  • Comparing your wares to another brands wares and reducing ther value. So saying "Widget A is better than Widget B" is banned. however it is allowed to say "Widget A is better than generic Widget" as long as generic widget has no brand whatsoever.
  • Claiming a widget as an imitation of another. You may not say "Widget A, our take on Widget B" or "Widget B copies our Widget A".

"Don't buy Widget B, buy Widget A" is meeting at least one but might meet most of those bans in Germany. The only Item that might be hard to make a case for is that ad creating market confusion, as they try their darndest to set yourself apar.

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  • @IñakiViggers Two different brands of similar items are, under that law, not allowed to be advertized that way (1), "don't buy" is not objective, and thus banned under (2), you are correct under (3), comparing self to the other is either (4) or (5), OP implies the product is "our better take on widget" and thus (6)
    – Trish
    Commented Feb 15, 2022 at 21:11
  • "Two different brands of similar items are, under that law, not allowed to be advertized that way". § 6(1) defines vergleichende Werbung, but that does not mean that any comparison which pinpoints a competitor is illegal. It is unlawful only in the scenarios listed in § 6(2). There is no indication that the OP's description falls in any of those scenarios. ""don't buy" is not objective, and thus banned". The statement "Don't buy" is a suggestion --an order, if you will-- and therefore not susceptible to a test of objectivity. Commented Feb 15, 2022 at 21:31
  • fact is, in germany you can't do that advertizement legally.
    – Trish
    Commented Feb 15, 2022 at 21:38
  • ""Widget B is the cheapest of all Widgets!" as you compare different kinds (even if they were all TVs - different brand? Then are different kinds!)" That's a sentence fragment. ""Widget A is better than generic Widget" as long as generic widget has no brand whatsoever." What product has no brand? Commented Feb 15, 2022 at 23:18
  • @IñakiViggers At the moment, this question has fewer than eighty views, so I don't see how it can be notorious. Perhaps you mean "egregiously". Commented Feb 15, 2022 at 23:19

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