KPN vs. T-Mobile: comparative advertising as crime passionnel

In May 2020, T-Mobile launched the "Break-up Weeks". The playful message: break up with your current telecom provider. Part of the campaign was a radio commercial with the following text:

"Oh, I remember so well how I fell for you. Your beautiful green shops, your smooth sales pitches and that shiny modem. But that was four years ago, and the only thing I've gotten from you in recent years is a higher price".

KPN thought it was all a bit less jolly, and started preliminary injunction proceedings. T-Mobile would claim explicitly that KPN did literally nothing for its customers (apart from raising the price), and implicitly T-Mobile would claim that it did not raise its prices. Misleading comparative advertising - according to KPN.

The court ruled that the average consumer will be able to value the explicit claim. This, in the sense of: KPN has done what is necessary, but no more. Now that KPN cannot demonstrate that it has done more than can be demanded of it as a telecom provider, the court finds that this is not misleading. That is different for the implicit claim. The court agrees with KPN that the average consumer will conclude from the advertising that T-Mobile has not increased its rates in recent years. However, T-Mobile has applied an annual inflation correction, and that is also a price increase. So: misleading.

T-Mobile is ordered to rectify its website. "T-Mobile wrongly told consumers in a radio commercial that T-Mobile - unlike KPN - was not increasing its prices. In addition, T-Mobile is prohibited from referring in advertising to price increases implemented by KPN, without referring in the same expression to price increases implemented (or to be implemented) by T-Mobile, including corrections for inflation.

Noteworthy: the court kept this B2C advertising along the lines of Section 6:194a of the Civil Code (comparative advertising) in conjunction with Section 6:194 of the Civil Code (deception), which only prescribes B2B advertising. Tomato/tomahto, potato/potahto: the outcome would have been the same if the correct articles had been cited (6:194a in connection with 6:193c BW).

Daniel Haije