Claiming a top position – for example, as the largest company in Austria – presupposes that there actually is a steady and substantial lead over all competitors in Austria (OGH 25 April 2023, 4 Ob 223/22f).
Under § 2(1) UWG, a commercial practice is regarded as misleading if it contains incorrect information or is otherwise apt to deceive a market participant, in relation to the product, about one or more of the points listed in § 2(1)(1) to (7) UWG in such a way that the participant is caused to take a commercial decision that he would not otherwise have taken. In any event, the commercial practices listed in the Annex to the UWG are regarded as misleading under § 2(2) UWG. In light of this, in the case of the misleading element of § 2 UWG it must generally be examined how an average addressee understands the contested announcement, whether that understanding corresponds to the facts, and whether information that is incorrect according to this criterion is apt to cause him to take a commercial decision that he would not otherwise have taken.
If a commercial practice is misleading in this sense under § 2(1) UWG, it is unfair and therefore prohibited, without it being necessary also to examine whether professional diligence was observed; in particular, what matters is not whether the incorrectness of one’s own statement was recognisable to the advertiser, but only its objective incorrectness. Advertising with a top position is (just like comparative advertising) regularly measured against the element of § 2(1)(2) UWG.
It is objectionable under competition law if the – seriously and objectively verifiably asserted – top position does not correspond to the facts, or if the announcement is otherwise apt to mislead the relevant public. Market leadership is generally determined by market share, which reflects the economic success of an undertaking. Claiming a top position – for example, as the largest company in Austria – therefore presupposes that there actually is a steady and substantial lead over all competitors in Austria. If the contested assertion of a top position does not correspond to the facts, or if the information is incomplete, a misleading commercial practice is present.