When advertising with test results, a specific reference must be provided. As the Higher Regional Court of Cologne ruled (judgment of April 7, 2017 – 6 U 135/16), it is not sufficient to make a general reference to the print magazine in question. The reason for this is that the consumer should be spared having to search for the test results because this search often comes to nothing or leads to incorrect results.
Internet provider advertises with test result – reference missing
Two internet providers were in dispute. In 2016, one of the companies was voted “Best Internet Provider 2016” by a magazine following a satisfaction survey. This best internet provider then advertised its title and only gave the name of the magazine in which the test had taken place as the reference.
Infringement of competition law – advertising with test results without reference inadmissible
However, the Higher Regional Court of Cologne considered this approach to be a clear breach of competition law. Anyone advertising with a third-party test result must give the consumer the opportunity to read the exact content of the test and the test itself.
For this purpose, it is imperative to provide more precise information on the source. For example, the Higher Regional Court of Cologne considers the year of publication, the month of publication and the consecutive edition number to be suitable in the case of a magazine.
OLG Cologne: Ease of finding the results on the Internet does not play a role
Furthermore, according to the Higher Regional Court of Cologne, it is not sufficient that the consumer can find the test result relatively quickly using “Google”. The reason for this is that the advertising company cannot assume that everyone uses a search engine such as Google, Bing or Yahoo. The search result also depends heavily on entering the correct search term and selecting the subsequent results.
This multitude of intermediate steps to be taken by the consumer should be avoided. The customer should be able to access the test results easily, quickly and without errors so that they can obtain further background information themselves.
Be careful when advertising with test results
Caution is therefore still required when advertising products with a test result. As the judgment of the Higher Regional Court of Cologne shows, simply stating the source is not sufficient. The consumer must be given a simple opportunity to take note of the test itself in the advertising.
If such important information such as the reference is missing, the consequence is often a warning under competition law, which regularly involves a great deal of effort and high costs.