Advertising with test results without disclosure of the overall result

When advertising with test results, there are numerous competition law risks. In a case decided by the Regional Court (LG) Frankfurt am Main, the advertising included all test results for the individual categories, but not the overall result. The advertising company was sued for an injunction.

A company that distributes mattresses via the Internet was issued a cease-and-desist letter by the umbrella association of consumer protection centres. The reason was the company's advertising for one of their mattresses.

The mattress had previously been tested by the Stiftung Warentest. The advertising stated the various individual categories of the test with the respective result. The information was correct. The overall result – the grade "Satisfactory (4.2)" – was not stated. In fact, the overall result was worse than the partial grades would suggest due to the rating system.

The umbrella association of consumer protection centres considers this advertising to be misleading, as it creates the impression with customers that the mattress was rated with good results overall.

The court's decision

The Regional Court (LG) Frankfurt am Main affirmed, with judgment of 14.06.2017 – Az. 2-03 O 36/17 a misleading nature.

Although it is not in all cases required to state the overall result. In case law and legal literature it is recognized that advertising may also be permissible with individual results, provided that a poor overall result is not concealed.

In the view of the Frankfurt judges, however, the consumer understands the advertising in such a way that the test was reproduced comprehensively and in full. In fact, the overall result is missing, which reflects the assessment of the Stiftung Warentest. For it was not apparent what weighting the Stiftung Warentest had given to the individual results. Consumers, on the basis of the partial grades stated in the advertising, arrive at a better overall result than the advertised product actually achieved.

Conclusion

Advertising with individual results without disclosure of the overall result may also be permissible. However, a poor overall result must not be concealed.