Six-star hotel misleading?

The Higher Regional Court (OLG) Celle had to decide whether a luxury hotel may award itself six stars or whether such a classification of the hotel may only be made by an independent third party with appropriate expertise according to objective assessment criteria.

The operator of a luxury hotel displayed six five-pointed stars in a horizontal row at the entrance of his establishment to describe the standard of his hotel. However, the hotel operator could not present a corresponding classification from an official hotel rating agency according to objective assessment criteria.

A competitor therefore considered the advertising to be misleading and thus anticompetitive. He issued a cease-and-desist notice to the hotel operator and demanded cessation of the advertising which he regarded as unjustified.

The hotel operator vigorously disputed this claim. In his view, no misleading statement could exist in the first place, since his establishment was indeed a luxury hotel.

Decision of the Court

The Higher Regional Court (OLG) Celle decided by Beschluss vom 15.07.2014 – Az. 13 U 76/14 – as already the court at first instance, that the use of a row of 6 stars on the external facade of the hotel was misleading in this case and was therefore to be discontinued.

The marking with six stars would be understood by the relevant circles of trade as a neutral classification by an independent third party, which had classified the hotel according to objective criteria into a specific comfort and quality category. After all, it is customary for hotels to advertise with a corresponding rating in order to convey to potential customers their quality and facilities standard at first glance.

The fact that the hotel was indeed a luxury hotel did not change the misleading nature of the statement. Misleading conduct could be established once advertising was made using a quality mark which the public perceived as an independent evaluation by a third party.

Summary

The promotion of goods and services with certain quality marks is only permitted if these have been awarded to the product or service by an independent third party. If one advertises with the marks on one's own initiative, anticompetitive cease-and-desist notices are a threat.