FOCUS physician seals in court: Higher Regional Court (OLG) Munich declares the seals "TOP-Mediziner" and "FOCUS-Empfehlung" permissible with clear decision

The Higher Regional Court (OLG) Munich ruled by judgment of 22.05.2025 – 29 U 867/23 e that the FOCUS physician seals "TOP-Mediziner" and "FOCUS-Empfehlung", which the magazine "FOCUS GESUNDHEIT" awards to selected physicians in return for licence fees, do not constitute impermissible, misleading advertising within the meaning of the Act Against Unfair Competition (UWG).

What is the decision about?

The core issue is whether these seals are misleading because they suggest that the honoured physicians hold an objectively demonstrable top position.

Relevance for practice: The decision affects not only physicians, but also providers of rankings, test institutes, publishers and all professional groups that advertise with quality seals.

Background to the decision

The Zentrale zur Bekämpfung unlauteren Wettbewerbs e. V. had sued the publisher of the magazine "FOCUS GESUNDHEIT". The reason was the seals "TOP-Mediziner" and "FOCUS-Empfehlung" awarded by the publisher. These so-called FOCUS physician seals can be used for advertising purposes by physicians honoured by the magazine in return for an annual licence fee (€1,900 net).

Plaintiff's points of criticism:

• The seals suggested an objective evaluation and thus a top position.
• The evaluation methodology contained many subjective elements (for example, self-disclosures by physicians, patient reviews and peer recommendations).
• There was a lack of transparency regarding the selection, weighting and number of evaluations taken into account.
• The seals therefore did not constitute reliable quality evidence, but were rather misleading.

The publisher (defendant) defended itself as follows:

• The lists were based on sound journalistic research.
• The honours were not test seals, but editorial recommendations.
• The methodology was transparent, traceable and publicly accessible.
• Advertising with the seal merely provided a reference to the listing in the magazine.

The Regional Court (LG) Munich I initially granted the claim. However, the Higher Regional Court (OLG) Munich overturned this judgment in the second instance.

How did the Higher Regional Court (OLG) Munich decide on the FOCUS physician seals?

1. No violation of the prohibition on misleading conduct (§ 5 UWG)

The Higher Regional Court (OLG) Munich made it clear:

• The FOCUS physician seals do not constitute "technical test marks", but rather editorial assessments.
• The relevant public (patients searching for a physician) recognises that it is the result of journalistic research, not an objective quality test.
• The use of the well-known "FOCUS" logo makes the editorial origin clear.
• There is no misleading conduct regarding an alleged objective top position of the honoured physicians.

2. No obligation to disclose all evaluation details (§ 5a UWG)

• Whilst essential information must be communicated, this has been done: the evaluation methodology is accessible on the website.
• The fact that individual criteria were not weighted "mathematically" does not preclude transparency.
• A certain degree of subjectivity is unavoidable in the evaluation of medical services – the public does not expect a clinical laboratory analysis either.

3. No misleading conduct through "test seals" within the meaning of the case law on product tests

• The court differentiated between technical test seals (for example TÜV, Stiftung Warentest) and editorial recommendations.
• The latter are permissible if the procedure is serious, traceable and transparent – which was the case here.

Summary and recommendations for action

For physicians:

• They may continue to advertise with the FOCUS physician seal "TOP-Mediziner" and "FOCUS-Empfehlung" – provided that use is on the basis of a regular licence.
• Make sure to use the seal not in isolation, but with explanatory information on the methodology. Ideally, you should link directly to the corresponding FOCUS page.

For providers of rankings and evaluation platforms:

• Transparent methodology, traceable criteria and a credible "source" (for example, a well-known media brand) are essential.
• Make sure that your evaluations do not appear like objective test seals – clear communication is decisive.

For competitors and associations:

• A blanket objection to rankings is legally unlikely to succeed if these are researched editorially, explained in a traceable manner and are not presented as test seals.

If you yourself advertise with evaluations or quality seals or offer such a procedure and want to be on the safe side legally, consult the experienced solicitors and specialist solicitors at AVANTCORE Rechtsanwälte in Stuttgart, who are happy to advise on all competition law aspects – individually, competently and in a practice-oriented manner.

We have already dealt with competition law issues relating to advertising with test seals and awards on several occasions:

Advertising with test result "Ausgezeichnet" misleading?

Advertising with eBay test seal unfair?

Advertising with Stiftung Warentest judgment "gut" sufficient?