A short-notice full closure of the Nordbrücke (North Bridge) in Bonn caused considerable disruption to road traffic. A shipping company responded with a free offer for commuters and was challenged by a competitor for misleading advertising as a result. The Higher Regional Court (OLG) Cologne ruled in favour of the advertiser (OLG Cologne, order of 27 July 2026 – 6 W 57/26).
The fact that a free offer can be skilfully exploited by individual passengers does not in itself make the advertising misleading. What matters is how the average consumer addressed by the advertising understands the offer in its specific context.
The Case: Free Ride for Commuters
The company advertised a special offer on its website:
“Free ride for commuters. Free ship shuttle between Bonn, Bonner Bogen and Bad Godesberg.”
It did not set up a dedicated special service for this purpose. Instead, it fell back on its regular scheduled ships, which called at the landing stages named and then continued their route upstream.
A competing company considered the advertising misleading under § 5 of the Act against Unfair Competition (UWG). The statement “free” could be understood to mean that the advertised stretch was also free where a passenger continued on the same ship beyond Bad Godesberg. In fact, the offer had been intended to apply only to the journey between the stations named. Passengers who travelled on had to pay the regular fare.
Following an unsuccessful cease-and-desist letter, the competitor pursued its claim for injunctive relief in preliminary injunction proceedings (§ 8 UWG). The Regional Court (LG) Cologne and the OLG Cologne, however, found nothing misleading in the advertising.
The Specific Advertising Context Is Decisive
The case illustrates clearly how strongly the assessment of advertising under § 5 UWG depends on its specific context.
What matters is how the reasonably well-informed, reasonably observant and circumspect consumer understands the advertising in the situation concerned. Individual elements of the advertising statement must not be considered in isolation from the occasion, the target group and the rest of the presentation.
The statement “free ship shuttle” did not stand alone here. It was part of a campaign expressly aimed at commuters that visibly responded to the closure of the Nordbrücke, and it named the specific route between Bonn, Bonner Bogen and Bad Godesberg. In addition, there were further notes on the website according to which the offer related to the “short Rhine stretch”.
For the OLG it was therefore sufficiently clear that free travel applied only to this part of the route. A circumspect consumer was not entitled to understand the advertising to mean that, on a journey extending beyond it, the free section would be credited against the regular fare.
Exploitability Is Not Misleading Advertising
The applicant also based its allegation of misleading advertising on the argument that, in the absence of checks, persons who do not belong to the addressed group of commuters could also use the free stretch. In theory, non-commuters could thus also take advantage of the free route or build it into a longer journey.
The OLG saw no reason in this, however, to regard the advertising as misleading within the meaning of § 5 UWG. The lack of controls might indeed make the offer vulnerable to abuse or unauthorised use. For the assessment of whether advertising is misleading, however, this is not decisive.
This is because § 5 UWG turns on the impression that the advertising creates among the relevant public addressed. Whether individuals, despite understanding the offer correctly, can use it contrary to its purpose or exploit it particularly cleverly does not change the message conveyed by the advertising.
That is precisely why the applicant’s argument failed: the fact that the offer could also be used without entitlement in the absence of checks says nothing about how the consumer addressed understood the advertising. In particular, it does not follow that the consumer assumed that, on a longer journey, the advertised stretch would be deducted from the fare or remain free of charge. Rather, the advertising made the occasion, target group and scope of the campaign clear.
Exploitability and misleading advertising must therefore be kept separate: that an offer can be abused in the absence of checks concerns its practical handling and not the question of what impression the advertising creates among the relevant public addressed.
Consequences for Advertising Practice
The decision is relevant above all for time-limited campaigns, special offers and occasion-related advertising. Advertising is allowed to make its point sharply. Whether a statement is misleading is not assessed by reference to every theoretically conceivable misinterpretation but by the actual understanding of the relevant public in the overall context.
The converse is just as important and protects against a dangerous false conclusion: the advertising was permissible only because the occasion, target group and reference to the route were clearly recognisable in the slogan. Where precisely this context is missing, the assessment tips the other way. A bold “free” claim is therefore not safe per se, but only for as long as the relevant limitations remain recognisable from the campaign itself. The more important a restriction is to the offer, the more clearly it must be communicated.
A one-off, occasion-related advertising statement is not misleading merely because, in an atypical edge case, it could be understood differently or deliberately exploited, provided that its situational context remains recognisable to the average consumer.
Has your occasion- or campaign-related advertising been challenged as misleading in a cease-and-desist letter – or would you like to safeguard a campaign in advance under competition law?
