Advertising with test results – unfair competition?

May a merchant advertise with a test result in an order catalogue if the public can only view it on the internet? The Regional Court (LG) Oldenburg considered this to be unfair competition and ordered the merchant to cease advertising with the test result.

The merchant advertised a vacuum cleaner in an advertising brochure with the test result "very good". As the source of the test result, the vacuum cleaner seller cited an internet portal where the corresponding test results are published.

A competition association then demanded that the merchant cease the advertising which it considered to be unfair competition by written cease-and-desist letter. The competition association took the view that it could not reasonably be expected of the public to look up test results on the internet when the advertising in a print catalogue advertised with a test result.

The merchant did not issue an undertaking to cease, rejected the cease-and-desist letter, and continued to advertise with the test result made available to the public on the internet portal. As a result, the competition association successfully sued the merchant before the Regional Court (LG) Oldenburg for an injunction. The merchant therefore had the decision reviewed by the Court of Appeal in the second instance.

Court decision

By judgment of 31.7.2015 (Az. 6 U 64/15), the Higher Regional Court (OLG) Oldenburg set aside the first instance judgment and permitted the merchant to continue advertising with the test result published on the internet (Press release of the OLG Oldenburg).

According to the Act Against Unfair Competition, advertising with a test result is not objectionable if the public is clearly pointed to the source and can access the test result without significant effort. Easy access is generally also possible for a test result published on an internet portal, since the internet is widespread among a large part of the population. A consumer can obtain access to the internet at any time without great difficulty, even if he does not have his own internet connection. He is not asked to do more than if he had to obtain a test result published in a magazine.

Conclusion

Despite this judgment, caution is advised when advertising with test results. It must always be ensured that the test result is (at least reasonably) representative, that it is a current test result, and that the result of the test is accurately reproduced in the advertising. The reference to publication of the result on the internet is then not unfair competition.