Facts
The Petroleum Association (Plaintiff) filed a lawsuit against Consuprint AG (Defendant) because the latter had published a distorted image of the Plaintiff's advertisement in its magazine "Saldo" with a picture of a dead seabird. The Plaintiff claimed that this constituted unfair competition under Art. 3 lit. a UCA and an infringement of personality rights under Art. 28 CC. The Commercial Court of Zurich dismissed the claim. The Petroleum Association appealed against this judgment. The Federal Supreme Court dismissed the appeal. It concluded that there was neither a disparagement of the Plaintiff's advertising within the meaning of Art. 3 lit. a UCA nor an infringement of personality rights under Art. 28 CC. The Defendant had merely pointed out the environmental dangers associated with oil transport with the distorted image, without portraying the Plaintiff itself as a killer of animals or a destroyer of the environment.Considerations
The Federal Supreme Court stated that while Art. 3 lit. a UCA can also cover the disparagement of a competitor's advertising, as this can influence competition, in the present case there was no disparagement, as the Defendant did not criticize the Plaintiff's advertising as naive or one-sided, but merely drew attention to an undisputed negative aspect of heating with oil. This does not constitute a…