Germany: First We Try Then We Trust – An Update On Advertising With Test Results

A. Background

In a world in which consumers have become more and more skeptical towards advertising, backing up promotional statements with test results is an extremely powerful marketing tool. This applies in particular to tests delivered by trusted consumer organisations and magazines such as "Stiftung Warentest" and "Ökotest" which enjoy an excellent reputation amongst German consumers, but also extends to tests and consumer surveys conducted by independent market research institutions or even by the advertiser itself. Advertisers whose products have performed well in tests have a vital interest in using these results in advertising. There is nothing wrong with that, as long as the advertising is not misleading or otherwise unfair towards consumers or other market participants.

Given that test results often imply an explicit or implicit comparison with third party products, advertising claims which are based on test results are closely monitored by competitors. And yet, many advertisers still underestimate the legal risks involved.

B. Case Law

As a general rule, advertising statements which are correct as to their content and refer to true test results are not to be objected.

Complying with this rule may become more complicated and challenging than it seems at first sight, though. The impression that a reasonable consumer takes away from the advertising depend on the overall context of the statement in the individual case. If the test only referred to certain characteristics of the product (for example health compatibility or ecological sustainability), the advertiser needs to disclose this limited scope. If the product has received the mark "good," the advertiser generally does not need to emphasise that there are further products on the market which have been awarded the very same mark. However, as the German Federal Court of Justice has ruled as early as in 1982, if such product is ranked lower than the average, because there were various products that have been ranked higher, the advertising would be misleading, since the consumer understands the mark "good" as a classification of (at least) belonging to a top group of leading products.

Advertisers who are seeking first guidance on how to avoid false advertising will appreciate rules for advertising with test results as issued by Stiftung Warentest. This is a German organisation founded to provide market transparency to consumers by conducting and publishing product tests. Although a breach of these rules, which form part of the logo license agreement with Stiftung Warentest, does not necessarily constitute a violation of the German Act Against Unfair Competition, German courts tend to apply the rules as an understanding of best practices in their legal evaluation, even in cases of tests made by other institutions or bodies.

In line with the rules of Stiftung Warentest, it is well-established case law that advertisers who refer to test results have to make reference to the publication, so that the consumer can access the test quickly and easily. According to a decision by the Hamburg Appellate Court in 2013, these considerations do not only apply to tests by Stiftung Warentest or other public institutions, but also to consumer surveys specifically commissioned by the advertiser, if the advert creates the impression that the test was made by an independent, neutral body. Since such tests are usually not published in journals, the advertiser would be expected to find other means to provide the consumer with a quick and easy option to review the test. Without limitation, it would be common practice to provide a URL in the advertising or otherwise make reference, e.g. through a hyperlink, for the consumer to easily reach and download the full test.

This being said, only advertising statements of apparent subjective character (i.e. where the consumer clearly understands that the test has been conducted in-house by the advertiser and may be biased) may do without a specific reference. However, the advertiser should always be aware of the fact that designating one's own product as "our test winner" or "our number one product" generally qualifies as holding oneself out to have a leading position on the market, which means that the advertiser bears the burden of proof that the statement is true and accurate.

Advertisers should also ensure not to advertise with test results in which they compare their current product with an older version of the competitor's product. Only recently, the Düsseldorf Appellate Court has confirmed that consumers expect that a comparison of competing products would refer to the parties' current models. On that basis, the Court ruled that it is misleading to compare one's own current version with an outdated competitor's product that has already been replaced by a follow-up version. In the very same decision, the Düsseldorf Appellate Court also held that it was unlawful by the advertiser to state that the competing product has been "invited to participate" in the test, where the competitor actually had not even been informed about the test. According to the Court, this specific wording chosen by the advertiser would falsely create the impression as if the test conditions were agreed upon with the competitor and, thus, has been made under neutral and well-balanced conditions.

C. Comments

The above mentioned cases were meant to illustrate the various "traps" of advertising with test results. As always with misleading advertising, the legal assessment very much depends on the specific circumstances of the case. There are certain guidelines, however, which are accepted by German courts and which advertisers should follow in order to avoid objections. Companies localizing global advertising campaigns, which do involve test results, are well-advised not to simply translate the campaign into German language, but to carefully review their advertising statements with respect to compliance with German case law and advertising standards.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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