The subject matter was the advertising of a DIY store for the wall and ceiling paint “Alpinaweiß”. The advertisement was designed as follows (excerpt from the original illustration from the judgement): Only the test rating with the heading “TESTSIEGER” was recognizable on the product in the advertisement, but not the source:
(picture shown in the Newsletter)
The plaintiff, Verband Sozialer Wettbewerb e.V., was of the opinion that the advertisement was unlawful because the product illustration indicated the test victory (“TESTSIEGER”), but not the source of the test.
Both the Regional Court of Cologne and the Higher Regional Court of Cologne upheld the action. The Federal Supreme Court dismissed the defendant’s appeal. In its judgement, the Federal Supreme Court confirms the principles for advertising with test ratings. In particular, it confirms that the indication of the source of the test is material information within the meaning of Section 5a (2) UWG (Act against Unfair Competition), the withholding of which from the consumer constitutes an unfair act.
It is true that information is not material within the meaning of Section 5a (2) UWG merely because it may be of importance for the consumer’s business decision, but only if its disclosure can be expected from the company, taking into account the interests of both parties, and if it is also of considerable weight for the consumer’s business decision.
However, referring to its established case law, the Federal Court of Justice points to the obligation under Section 5a (2) UWG to indicate the source of the test publication when advertising with quality assessments (see, inter alia, BGH GRUR 2010, 248 paras. 29-31 – Kamerakauf im Internet – purchase of a camera on the internet; BGH GRUR 1991, 679, 680 – Fundstellenangabe – Indication of the source). There is a considerable interest of the consumer to know how the evaluation fits into the environment of the other tested products and to compare the test results of the advertised product with those of the other tested products (para. 14, with further references).
The duty to inform about the source of the test publication does not cease to apply because the test victory recognizable on the product´s picture is not particularly emphasized. It is irrelevant whether a test result is advertised by means of a separate addendum or merely on a product packaging depicted in the advertisement. The consumer’s interest in being able to examine an advertisement with a test result for the purpose of making an informed business decision and, in particular, to be able to place it in the overall context of the test, does not depend on the intensity of the advertising of the test result, but solely on whether the test result is recognizable in the advertisement. In the specific case, the defendant could be expected to refer to the source of the test publication, for example, with a footnote in the brochure.
The Federal Supreme continues to confirm that the source had also been withheld from consumers. A company withholds information from the consumer if the consumer does not receive it or does not receive it in such a way that he can take it into account in his business decision (para. 19, with further references).
It is not sufficient that the test result can be easily researched. Verifiability of a test winner advertisement, and thus the possibility for the consumer to ascertain what the content of the test has been, may only be assumed if the consumer can find the source without further intermediate steps. This requirement is not fulfilled if the consumer must find the reference on his/her own by means of an online search via a common search engine. Rather, a source must be clearly indicated, easily accessible and allow an unambiguous allocation to a certain test in order to provide the consumer with a simple possibility to take note of the test himself (para. 21 with further references). Even if the indication of Stiftung Warentest’s website had been recognisable in the test rating on the product image, this would not satisfy the requirements for indicating the reference of the test. This is because the test in question cannot usually be found directly on Stiftung Warentest’s website, but must be found through further research (para. 24).
In the case decided, the source of the test (year of publication and issue) was correctly reproduced on the Stiftung Warentest´s test seal affixed to the product itself, but not on the image of the paint bucket in the advertising brochure.
The Federal Court of Justice pointed out in this context that the reference to the source of the test on the actual product in the defendant’s stores would not be “timely” (para. 24). This is because information is only timely if the consumer receives it before he/she can make a commercial decision based on the advertising. The term “business decision” encompasses not only the decision to purchase or not to purchase a product, but also directly related decisions such as, in particular, entering the shop.
Finally, the withholding of this material information was also “substantial” within the meaning of Section 5a(2) UWG.
As to liability for the infringement, the Federal Supreme Court confirmed the Court of Appeal’s view that the defendant itself had advertised the test victory. It was not a matter of the defendant’s duty to verify any manufacturer’s (advertising) statements on the product image, but of the defendant’s own duty to correctly inform the consumer based on the advertising brochure it published.
By publishing the advertising brochure, the defendant had acted in favour of its own company prior to the conclusion of a business transaction; such act was objectively related to the promotion of the sale of goods and thus constituted an (own) commercial act within the meaning of Section 2 para. 1 no. 1 UWG. In the context of this advertising, the defendant had included the product image of the paint bucket in its advertising brochure in such a way that the test winner rating was recognisable, but not the source of the test. The defendant had thus itself withheld from consumers material information within the meaning of Section 5a (1) UWG.
The Federal Court of Justice distinguished the facts of this case from those underlying the “Customer reviews on Amazon” judgment (BGH GRUR 2020, 543). There, the subject matter were customer reviews that were available under a product offer of the defendant on Amazon´s platform and which were objected to as misleading. There, the defendant had not adopted the customer reviews as own advertising because the customer reviews were marked as such, were found on the online trading platform separately from the defendant’s offer and were not attributed to its sphere by the users.
The judgement of the Federal Court of Justice again confirms the importance of correct advertising with test seals.
