Full-bodied promises and exaggerations are not uncommon in the advertising and self-presentation of companies. If a company advertises that it is the best on the market, it may have to prove this position in court.
Under certain circumstances, it may be possible to provide evidence via so-called analysis tools. However, the tools should be selected carefully, according to the Regional Court of Hamburg in its ruling of August 8, 2017 (Ref.: 312 O 176/17). However, “Alexa Ranking”, “Similarweb” and “Wolfram Alpha” do not provide any information about a possible top ranking. “Google Analytics” can be considered more suitable evidence, but only if all relevant information is collected.
Search portal maintains top position
A search portal had advertised online with the slogan “the leading information and search portal for garden events, garden fairs and country parties in German-speaking countries”.
A similar online portal then issued a warning and demanded that it sign a cease-and-desist declaration subject to penalty due to an infringement of unfair competition. According to a SISTRIX analysis, the search portal was not the number 1 in the area of garden events.
Anyone who describes themselves as a “leader” must also prove it
If a product or company is advertised as “leading”, it is not a subjective expression of opinion by the advertiser, but a clear claim to a leading position, according to the LG Hamburg. It is not sufficient for the advertiser to have only a slight lead over its competitors. Rather, the consumer expects an economically significant special position in terms of scope and duration. The advertiser must have a clear lead over its competitors and the lead must offer the prospect of a certain continuity.
No probative value for analysis tools such as Alexa Ranking, Similarweb and Wolfram Alpha
However, the search portal operator did not succeed in proving its claim to a leading position during the trial. In order to prove its top position, the search portal operator listed a number of internet analysis tools, none of which were meaningful in the opinion of the Hamburg Regional Court. “Alexa ranking”, “Similarweb” and “Wolfram Alpha” were not able to prove the number of visitors to a website.
An assessment of the top position via Facebook fans is also not meaningful enough. This is because the addressees of the advertisement do not relate the challenged statement to the fact that the search portal has the most Facebook fans. Rather, they relate the advertising to the actual number of visitors to the website.
Evidence: Google Analytics is more convincing as an analysis tool
With regard to Google Analytics, the Regional Court of Hamburg considers the number of visitors and the associated leading position to be more of a suitable source of evidence. However, in this case, the search portal only provided the figures for its own company, but not for its competitors. This merely confirms its visitor numbers, but does not put them in relation to other search portals. The assertion of a top position, however, always requires a comparison, according to the LG Hamburg.