Advertising With Distinction “Test Winner” Permissible in Germany
According to a judgment of the OLG Düsseldorf (Higher Regional Court of Düsseldorf), a company is allowed to use the expression “test winner” in its advertising even if it has to share this distinction with other competitors (I-15 U 24/15).
In the case in question before the Oberlandesgericht Düsseldorf, a discount store had promoted energy-saving lamps with the distinction “test winner”. In fact, it was not only this product but also a competitor’s product that performed the best in the test. The institution which carried out the test did not award the accolade “test winner”. A competition association therefore decided to take legal action against this advertising, claiming that it was misleading for consumers.
The plaintiff argued that at least a significant portion of consumers understood the term “test winner” to mean that the product emerged as the best from the comparative test. It went on to state that they would also assume that the distinction had been awarded by the institute which had conducted the test. It pointed out that both of these assumptions were wrong in this case. Nonetheless, the action failed both at first instance and on appeal before the OLG Düsseldorf.
The OLG did not consider the use of the term “test winner” in the advertising to be misleading. On the contrary, it said that advertising the test results was absolutely legitimate if the accolade had not been obtained surreptitiously and was awarded within the framework of a serious process. The Court held that the company did not need to point out whether it had to share the distinction with competitors, since consumers are well aware that it is possible in the context of this type of test comparing products for several of the tested products to achieve the same result and thus end up finishing in the same place. The Court explained that the term “test winner” therefore simply meant that no other product had performed better. According to the OLG Düsseldorf, even though the accolade “test winner” had not been explicitly awarded, it was sufficient for the promoted product to have received the best rating. However, it ought to be noted that other courts have reached different verdicts in comparable cases.
With this is mind, advertising can, legally speaking, be a tightrope walk for businesses. If statutory regulations are not observed, this can give rise, for instance, to infringements of the German Gesetz gegen den unlauteren Wettbewerb (Unfair Competition Act). When it comes to fending off demands and enforcing claims, one ought to seek out a lawyer who is qualified in the field of competition law.
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