Manufacturers, though generally keen to cite test verdicts and seals of approval as a means of establishing the quality of their products, are no longer allowed to use a test logo if a more recent test has since been conducted.
One of the key indicators of the quality of a product for consumers are verdicts and seals of approval from tests conducted by respected organizations, which is why manufacturers like to make use of them. However, the use of a test logo is deemed to be improper if the results of a more recent test featuring modified test criteria have since been made available. That was the verdict of the Bundesgerichtshof (BGH) – Germany’s Federal Supreme Court – in a judgment from December 16, 2021 (case ref.: I ZR 201/20). We at the commercial law firm MTR Rechtsanwälte note that improper use of a test verdict or seal of approval may entitle the trademark owner to claim damages.
The plaintiff in this case was the publisher of a consumer magazine that thoroughly examines products and allows the manufacturers to use its test seal under a free license agreement. The test logo in question has been registered as an EU trademark since 2012, with the plaintiff holding the trademark rights. The license agreement stipulated that use of the test logo would no longer be permitted once a more recent test had been conducted and the results become outdated.
A manufacturer was awarded a test seal for a toothpaste that was not included in a subsequent test with modified test criteria, but this did not stop one retailer from promoting it using the test seal. This was challenged by the plaintiff, whose lawsuit was ultimately successful before the BGH.
The Karlsruhe judges ruled that this use of the test logo amounted to unfair exploitation of the combined word and figurate mark’s reputation, noting that while the toothpaste had indeed been awarded the seal in one test, this was now out of date with the release of the more recent test with modified criteria. The BGH held that advertising with outdated test results is misleading if new test results have since been made available. The plaintiff was said to have a legitimate interest in the outdated test results no longer being used for promotional purposes lest consumers lose confidence in the test seal and its reputation be damaged as a result.
The Court went on to conclude that although it was not possible to establish that the plaintiff had suffered actual harm or loss, and therefore no damages could be calculated on the basis of a license analogy, the plaintiff could nonetheless claim damages for infringement of its trademark.
Lawyers with experience in the field of trademark law can provide counsel.
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