Law book and wooden judges gavel on a wooden table top in a shaft of sunlight with rayed shadow effect, conceptual image of law enforcement with copyspace

Wiesbaden Regional Court, judgment of 10.10.2018 – 12 O 29/18

Inadmissibility of advertising for a product with the designation "best product" and "product winner"

Guiding principle:

Inadmissibility of advertising for a product with the designation “best product” and “product winner”

Tenor:

The defendant is ordered, on pain of a fine of up to € 250,000 for each case of infringement, or alternatively imprisonment or detention for up to 6 months, to enforce it against its

Managing Director, to refrain from, in the course of business

to advertise and/or have a product advertised with the seal shown below: without providing and/or linking to criteria that provide information on why the product has become “BEST PRODUCT”;

and/or

to advertise and/or have a product advertised with the seal shown below:

without providing and/or linking to criteria that provide information on why the product has become a “Product Winner”.

The defendant is ordered to pay the plaintiff € 267.50 plus interest in the amount of 5 percentage points above the respective base interest rate since June 12, 2018.

The defendant is to bear the costs of the legal dispute and the judgment is provisionally enforceable. The defendant may avert enforcement on the part of the plaintiff by providing security amounting to110 % of the amount to be enforced, unless the plaintiff provides security in the same amount.

Facts:

The plaintiff is claiming injunctive relief and payment from the defendant.

The plaintiff is an interest group to which almost all chambers of industry and commerce as well as numerous medical associations belong.

As such, it deals with combating unfair competition in accordance with its articles of association.

The defendant sells medical technology and care products.

The plaintiff sent the defendant a warning letter dated March 22, 2018 and requested it to submit a declaration to cease and desist with a penalty clause (Annex K2) in connection with a website of the defendant www..de, in which the defendant advertised with 2 pictured, non-clickable seals without any information on its website as to why the product had become “best product” and “product winner”.

The defendant refused to issue a cease-and-desist declaration with a penalty clause in a letter from a lawyer dated April 5, 2018.

The plaintiff argues that, through the membership of almost all chambers of industry and commerce, almost all tradespeople in Germany are indirectly among its members. Through the membership of numerous medical associations, doctors in Germany are also indirectly among its members.

He further submits that the website in question is also aimed at consumers, since it is again apparent to the consumer when visiting the website that the defendant – as it claims – is limited to the sale of entrepreneurs in accordance with its general terms and conditions, nor are the general terms and conditions relevant to the consumer in connection with the consideration of the advertising at all. The products advertised by the defendant are intended to be used on the end customer. A consumer who wants to find out about the defendant’s products before undergoing treatment by a doctor or in a cosmetics institute will inevitably come across the test seals in dispute here. Since the defendant does not explain the test seals used in more detail, it deprives the consumer of material information within the meaning of Section 5a UWG.

The plaintiff requests,

  • to order the defendant, subject to costs and provisionally enforceable, to cease and desist from advertising and/or promoting a product with the seal shown below, subject to a fine of up to € 250.000, alternatively imprisonment or detention for up to 6 months, to be enforced on its managing director, to refrain from advertising and/or having a product advertised in the course of trade with the seal depicted below: without providing criteria and/or linking to such criteria that provide information as to why the product has become “BEST PRODUCT”; and/or advertising and/or having a product advertised with the seal depicted below: without providing criteria and/or linking to such criteria that provide information as to why the product has become “Product Winner”.
  • to pay the plaintiff € 267.50 plus interest in the amount of 5 percentage points above the respective base interest rate since June 12, 2018.

The defendant claims,

dismiss the action.

The defendant claims that it does not supply products to end consumers, but only to commercial customers. This is sufficiently clear from its general terms and conditions, which can be accessed on its homepage. It is a sales partner of the US company, manufacturer and developer of the well-known skin treatment device. The price for this device is over €20,000. This tower had received the contested awards, on the one hand from the magazine that has been published in Paris since the 1950s and on the other hand from the well-known US magazine. It is therefore not advertising with awards from test marks or seals of quality, but with awards presented by magazines. The defendant considers the claim made by the plaintiff to be too broad because it relates to advertising in the course of trade, but the plaintiff is asserting claims for advertising to consumers. The plaintiff’s claim pursuant to § 5a UWG is in vain, because the challenged use of the awards is not directed at consumers, and secondly, the specification of the criteria for the award is dispensable in the specific case, since the website is only directed at business customers and a consumer is unlikely to purchase a stand-alone device for treatment by cosmetics and doctors for personal use at home. The defendant also considers further information on the awards to be dispensable, as neither certified safety nor certified quality is advertised, but only the fact that a certain magazine considers the Tower to be the best product. The defendant contests the plaintiffs’ entitlement pursuant to § 8 para. 3 No. 2 UWG with ignorance. Reference is made to the documents and papers on file and to the written submissions exchanged between the parties’ representatives in order to supplement the facts of the case and the dispute.

Reasons for the decision:

The admissible action is fully justified.

Pursuant to Section 8 para. 3 No. 2 UWG due to its membership structure, which includes numerous medical associations (Köhler, inKöhler/Bornkamm, UWG, Introduction 2.45 with further evidence).

Pursuant to Section 8 para. 3 No. 2 UWG, the plaintiff is entitled to injunctive relief against the defendant pursuant to Section 5a UWG.

The injunctive relief sought is not too broad. Rather, the limitation of the application for injunctive relief to advertising in the course of trade restricts the scope of the requested prohibition to matters that fall within the scope of the UWG (Section 2 No. 1 UWG).

With the contested advertising on its homepage with two awards from two magazines, the defendant withheld information from the consumer without further explanation, which is essential in the specific case, taking into account all circumstances including the limitations of the means of communication (Section 5a (2) UWG). Material information within the meaning of Section 5a para. 2 UWG includes information which is of considerable importance for the consumer’s business decision and which the trader can be expected to provide, taking into account the interests of both parties. It is recognized in case law that advertising with a test seal must include a reference that the consumer can use to verify how a test result or an award came about (OLG Düsseldorf of 30.12.2014 – 15 O 76/14; BGH I ZR 26/15, both cited in juris).

The principles developed by case law for the duty to provide information when using test results and test seals also apply in the present legal dispute in the opinion of the court, as the advertised properties of the treatment with “Best Product” and “Product winner” are nothing other than the use of a test result, as can also be seen from the term award. An award refers to a conferment/prize/award. Such an award is presented by a jury using selection criteria. The purpose of an award is to emphasize the award-winning product over other products. This is intended to make it easier for the consumer to make a choice.

Insofar as the defendant objects that its website is not aimed at end consumers but at commercial customers and that this is sufficiently clear from its general terms and conditions and from the fact that the skin treatment device advertised by it costs over €20,000 and that no consumer would purchase such a stand-alone device, meaning that the requirements of Section 5a UWG are not met, the court does not share this view. The design and content of the defendant’s homepage is not aimed at commercial purchasers of the stand-alone device for skin treatment, but at the end consumer who would like to have a skin treatment carried out with this device. The interested customer who is considering a cosmetic treatment is to be convinced of the quality of the product by the list of awards, whereby the product as such is not to be sold, but the treatment to be carried out is advertised. The first page of the website features the tabs “home, treatment, products, contact and for professionals”, thus differentiating between consumers and professionals. The consumer can find out about the treatment and the products on the one hand and find out which beauty institutes provide the treatment on the other. There is no reason for the consumer to find out from the terms and conditions on the homepage that the defendant is a sales partner of a US company.

By stating two awards based on the test of several comparable products, the defendant is obliged to also include the reference for the text publication on its website for the consumer (BGH – I ZR 151/89 – reference; BGH I ZR 50/07 – camera purchase on the internet, both cited in juris).

The assumption of an information obligation also requires that the information is of considerable importance for the consumer and their decision. When a product is advertised with a quality rating, the consumer regularly has a considerable interest in finding out which individual features make up the rating and the test result and why the advertised product was the test winner.

The defendant did not comply with this obligation after being requested to do so by the plaintiff.

The plaintiff is entitled to payment pursuant to Section 12 para. 1 UWG. The plaintiff has explained in detail how his claim for pro rata reimbursement of personnel and material costs is made up in the form of the flat-rate costs claimed. The amount is reasonable (Köhler, UWG, Section 12 para. 1.98). The plaintiff is entitled to interest in accordance with §§ 291, 288 BGB.

The decision on costs is based on Section 91 ZPO.

The ruling on provisional enforceability is based on Section 708 No. 11, 711 ZPO.

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