Source reference for test results in product photos

A source reference is mandatory when advertising with test results. However, does this obligation also apply to advertisers when depicting product packaging on which a test result is displayed? The Higher Regional Court (OLG) Cologne says yes.

A competition association and a retailer disputed claims for injunction and reimbursement of cease-and-desist costs. The subject of the dispute was the retailer's prospectus advertising. In this advertising, a product was promoted, the packaging of which bore a test seal. Whilst a source reference could be discerned on the product image, it was not legible. The retailer did not provide a separate source reference in the prospectus itself.

The competition association sent a cease-and-desist letter to the entrepreneur. The allegation was that the advertising was unlawful competition due to the visibility of the test seal and the lack of visibility of the source reference. After the unsuccessful cease-and-desist letter, the competition association filed a lawsuit with the Regional Court (LG) Cologne (Urt. v. 29.10.2019, Az. 33 O 55/19). The Regional Court concluded that the retailer should have highlighted the source reference further and ruled in favour of the competition association's claim.

The retailer appealed this judgment to the Higher Regional Court (OLG) Cologne.

Judgment of the OLG on advertising with test results

The Higher Regional Court (OLG) Cologne (Urt. v. 10.07.2020, Az. 6 U 284/19) upheld the view of the court of first instance. According to this, the retailer should have presented the source reference of the test result in legible form.

The OLG first referred to the case law of the Federal Court of Justice (BGH). According to this, information about test verdicts contained in advertising must be easily and unambiguously verifiable. This presupposes that a source reference is provided that is easily discoverable for the consumer. In principle, therefore, when advertising with test results, it is always necessary that information about the tests is made available in the form of a source reference.

Source reference required for test results

The test award cited on the product was clearly visible on the product image in the prospectus. In the court's view, this resulted in a corresponding advertising effect. If the retailer makes use of a product's test award in the context of its own advertising by presenting it in a manner that is visible to the relevant commercial circles, the retailer benefits from this presentation. This is because it promotes the sale of the product, according to the court.

In such a case, retailers are therefore obligated to point to the source reference. Otherwise, they would exploit the presentation of the test award without bearing the information obligations that normally apply when advertising with a test award.

The retailer argued that it had not made the advertising with the test seal its own. In this regard, the court noted that in a case-by-case assessment, it must be determined whether there is test award advertising. Due to the particular advertising effect of the test award seal, however, the balancing of interests here led to the obligation to provide the source reference. This applies even if the advertising is conducted merely objectively with the test award, without the advertiser particularly highlighting it.

Conclusion

If retailers advertise with product images showing clearly visible test seals on the product packaging, caution is advised. To avoid trouble, a source reference meeting legal requirements should be provided.