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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions