Germany's best-selling mattress test winner

Is advertising with a mattress test winner permissible or an impermissible sole or top position advertisement? How may test results be advertised in Google Ads? The Higher Regional Court (OLG) Frankfurt am Main reviewed the advertising for the Emma-One mattress series.

The manufacturer of the "Emma-One" mattress series advertised its products with the following slogans:

"Emma One is "Germany's currently best-selling mattress series""

"Emma One mattress test winner – Germany's best-selling""

"Emma One test winner 10/19 90×200 firm & best-selling mattress series last 12 months"

Additionally, advertising was done in the context of a Google ad featuring a test victory without providing a source reference in the advertisement.

The competing manufacturer of the "Bodyguard mattress" objected to the advertising measures as misleading and unfair. After the out-of-court cease-and-desist letter was unsuccessful, it pursued its injunction claims in interim proceedings.

Higher Regional Court (OLG) Frankfurt a.M. prohibits advertising for the mattress test winner

By judgment of 13.01.2022 – 6 U 161/21 the Higher Regional Court (OLG) Frankfurt a.M. ruled in favour of the competitor and prohibited advertising with the slogan "Germany's currently best-selling mattress" as misleading and thus anti-competitive.

In the case of top position and sole positioning advertising, the advertising company must present and prove the underlying facts. This applies in particular when the advertising is disputed as incorrect and the opposing party can either not at all or only with considerable difficulty clarify these facts.

The court found the sworn declarations of the mattress manufacturer to be insufficient. The sales figures had not been clearly disclosed. Moreover, verifiable information was lacking.

The court also prohibited the slogans:

"Emma One mattress test winner – Germany's best-selling""

and

"Emma One test winner 10/19 90×200 firm & best-selling mattress series last 12 months""

as misleading. These statements created the incorrect impression that precisely the test-winning product, namely the Emma One 90×200 firm, was the best-selling mattress. In fact, this information referred to the entire mattress series.

Finally, the court also prohibited the Google ads featuring the test result as unfair.

In the court's view, it is not sufficient that clicking on the Google ad leads to a page on which the test seal appears. Rather, it is required that the test result itself in the advertisement be provided with a source reference or a link. A clearly visible linking of the test information or information comprising only a few characters (e.g. "Stiftung Warentest Issue 2/12") shall be sufficient for this purpose.

Conclusion

Advertising featuring a test victory must relate to the relevant product. It must not create the incorrect impression that the test victory covers multiple products or an entire product series.

A Google ad must also contain a clear and readily accessible source reference if it advertises a test victory.