Advertising with test results – not for product variants!

The judges of the Higher Regional Court of Cologne (OLG Köln) had to decide whether a mattress seller was permitted to advertise with a test result, even though the advertised product was not the tested mattress model, but rather a different model that merely differed in size from the tested variant.

Two competitors distribute mattresses via the Internet. One of the two distributes a particular mattress, which has a firmness grade H 3 and is 90 x 200 cm in size. This mattress was tested by the Stiftung Warentest and was rated as GOOD (1.8).

The company advertised with the test result not only the tested mattress with the firmness grade H and the said size, but also mattresses of other firmness grades and sizes.

The competitor considers the advertising to be anticompetitive. After a warning letter proved unsuccessful, the competitor filed suit. The Regional Court of Cologne (LG Köln) ordered the advertising company to cease and desist at first instance. The company appealed – without success.

The court's decision

By means ofjudgment of 13.04.2018 – Az. 6 U 166/17the Higher Regional Court of Cologne (OLG Köln) confirmed the view of the Regional Court of Cologne (LG Köln) and dismissed the action.

The advertiser using test results must comply with the criteria of truthfulness, objectivity, completeness, timeliness and transparency. A misleading statement is always present if the test relates not to the advertised but to different goods, even if these are outwardly similar and technically identical in construction.

The Cologne judges take the view that the test result applies only to the mattress actually tested and not to all mattresses of the manufacturer with the same firmness grade, regardless of what size.

The court further states that from the consumer's perspective, it is not obvious that mattresses are always structurally identical regardless of their size. In fact, the tested mattress model is not always identical in construction regardless of its length. Although the (advertised) mattresses are all cut from the same foam blocks, the relative arrangement of the lying zones created by the cuts in relation to each other and to the overall length is nevertheless necessarily different.

Conclusion

Advertising with a test result is permitted exclusively for the concrete product actually tested. Even if a product variant differs only in size, this product may not be advertised using the test result. It must be clearly indicated that not the advertised article but a structurally identical different article was tested.