Advertisements that feature test verdicts must include a reference to the source that is clearly visible to consumers. That was the verdict of the Bundesgerichtshof (BGH) – Germany’s Federal Supreme Court – in a ruling from April 25, 2021 (Az.: I ZR 134/29).
Products that perform well in tests conducted by prestigious institutions can draw on these accolades as a source of positive publicity. We at the commercial law firm MTR Rechtsanwälte note, however, that advertisements that feature a test verdict must also specify where consumers can look up the test results for themselves. Failure to do so constitutes a violation of competition law according to the BGH.
The case in question concerned a DIY chain that had been promoting a manufacturer’s paint in a catalogue, with the image of the paint bucket featuring alongside a small test verdict and recognition of the product as a “Testsieger”, i.e. the best performing product in a test.
A competition association filed a lawsuit in response to this, arguing that the advertisement was anticompetitive. While acknowledging that the catalogue featured the test verdict alongside the relevant image in the catalogue, it also noted that there was no visible reference to the source of the test.
The First Civil Chamber of the BGH granted the action. The judges found the advertising to be in breach of the German Unfair Competition Act (Gesetz gegen den unlauteren Wettbewerb, UWG), and the plaintiff was therefore entitled to seek injunctive relief. The court went on to note that the distinction of being the best rated product in the test – featured clearly alongside the relevant image in the catalogue – had a positive promotional effect, and that the DIY chain had made use of this test verdict for its own promotional purposes and was required to provide a reference to the source of the test results. The court held that due to the exceptional promotional impact of a test verdict, it is necessary to include a reference to the source even if, as in this case, the distinction of being the best rated product in the test is only objectively being promoted without being particularly emphasized.
The BGH clarified that referencing a website featuring the source is not superfluous, as it can be easily looked up. Consumers need to be able to access the source without any intermediate steps.
The court noted that consumers’ interest in being able to investigate test-based promotions when making an informed business decision and to be able to make sense of them in the overall context of the test is not contingent on the intensity with which the test results are promoted.
There is often a fine line to be walked when it comes to advertising, with the prospect of penalties in the form of formal warnings, injunction suits, and damages claims never far away. Lawyers with experience in the field of antitrust and competition law can provide counsel.
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