Advertising with test result 'Excellent' misleading?

Advertising with a test result repeatedly presents entrepreneurs with challenges. The Higher Regional Court (OLG) Frankfurt am Main considers the addition 'Excellent' within the test seal of Stiftung Warentest to be misleading.

The mattress 'Emma' was the subject of a test by the Stiftung Warentest. In this process, 'Emma' was not the test winner, but was rated with the grade 'GOOD (2,2)'. Since advertising with a test result has a positive effect on the market, the mattress manufacturer wanted to use this circumstance to his advantage as well. Instead of the well-known 'test winner seal', which is inscribed with 'test winner' on the gold border, he used the addition 'Excellent'.

A competitor considered this addition, in the selected design, to be misleading.

Decision of the OLG Frankfurt regarding advertising with a test result

The OLG Frankfurt (Judgment of 09.06.2022 – 6 U 12/22) followed the competitor's view and therefore prohibited the specific advertising with a test result as misleading.

The court takes the view that the public understands the statement in question in such a way that the statement 'excellent' is attributed to Stiftung Warentest and does not constitute a separate statement by the advertising company. In this regard, the court may leave open whether, due to the graphic design, the public attributes every statement within the gold border of the test seal to Stiftung Warentest; in any case, the public will understand the designation 'excellent', which has a grading character, in such a way that Stiftung Warentest – beyond the classic grading with the grade 2.2 – has furnished the advertising company's product with a further award. Such a further award is also conceivable, as evidenced by labellings customary in product tests such as, for example, 'best value for money' or 'test winner'.

The statement understood in this way is misleading because Stiftung Warentest did not rate the product as 'excellent'.

Conclusion

The decision of the OLG Frankfurt deserves approval. Advertising with a test result leads to a significant trust advantage with the addressed public regarding the quality of a product. The positive attributes of advertising with a test result therefore require the observance of strict requirements in order to avoid misleading the public. Although the OLG Frankfurt left open whether any statement within the gold border of the test seal would per se lead to unfair practice, there is much to suggest that the public attributes advertising claims within the gold border to the official test result. In that case, even advertising claims that do not have a grading character would constitute an infringement of competition law. In any case, terms that express a grading should not be used within a test seal if that grading does not correspond to the test result.