Advertising with test results is fraught with risks

Advertising with a test result requires compliance with strict formal requirements in order to avoid misleading those being advertised to. The problem usually lies in the fact that the test is outdated or errors are made in presenting the significance of one's own test result. The Higher Regional Court (OLG) Saarbrücken now had to decide on a case in which the unclear subject matter of the test itself was questionable.

The advertiser advertised using the well-known seal of TÜV Saarland and the text "TÜV Service tested Bereich Kundendienst + Teileservice sehr gut freiwilliges Prüfzeichen". The test was based on a customer survey which TÜV evaluated and upon which it issued the certification. The institute did not conduct its own survey. A competitor objected to the advertising as anti-competitive because, in his view, it creates the false impression that the seal is based on an independent evaluation by TÜV and not merely a simple evaluation of a (third-party) customer survey.

The decision of the court

The Regional Court (LG) Saarbrücken prohibited advertising with the test result in this form. The appeal lodged by the advertiser against this decision was rejected by the Higher Regional Court (OLG) Saarbrücken by judgment of 28.01.2015 (Az. 1 U 100/14). According to the court's view, the statement is misleading because it gives the impression that TÜV, as a recognised, independent organisation, itself tested the areas of customer service and parts service. However, this was not the case because merely an evaluation of a customer survey was carried out, which was not even conducted by TÜV itself. A customer survey is per se very much subjectively coloured, which the text used does not make apparent. The addition "freiwilliges Prüfzeichen" does not contribute to clarity in this regard either, which is why advertising with the test result is ultimately misleading and must be ceased.

Conclusion

Advertising with test seals and test results is demanding and harbours many a surprise. It is important that the advertising always clearly shows what was the subject matter of the test or certification and where the test result is to be classified. For example, a "good" test result is of no benefit if all or most of the other tested companies or products received a "very good" have reached.