Test results are important proofs of quality and are therefore capable of significantly influencing customers’ purchasing behavior. Advertising with test results is consequently rightly very popular.
However, advertising with test results entails numerous legal pitfalls. Even a test victory does not protect against justified cease-and-desist letters if the rules for advertising with test results are not complied with.
RULES FOR ADVERTISING WITH TEST RESULTS
Advertising with test results is permissible under the UWG (Federal Act against Unfair Competition) if the following conditions are met:
- The test was conducted by an independent institute.
- The test was neither commissioned nor paid for by the advertiser.
- All mandatory information must be clearly legible and easily accessible.
- The name of the testing institute must be specified.
- The date (year or month/year) of the test must be specified.
- The test result must refer precisely to the advertised product. A mere similarity is not sufficient, even if the advertised product is technically identical to the tested product in fact. Simple changes to the packaging are irrelevant.
- The test result must be current. A test result is considered outdated if newer test results with a worse outcome are actually available, or if newer test methods would lead to a worse result when conducting a new test.
- The test result must be based on a representative selection. If the test result is based solely on a random or arbitrary selection, this must be stated in the advertisement. This applies particularly if the advertised product is the test winner of a non-representative test.
- The overall result of the test must be stated in the advertisement, and not merely the result of a single test criterion.
- The exact ranking of the advertised product within the test result must be stated in the advertisement. This applies particularly if other products have achieved a better result than the advertised product (e.g., 5th place out of 15). Only if the test result is divided into categories and the advertised product achieves the highest category is it permissible to name the category but omit the exact ranking, even if there are better test results (e.g., “very good”).
- The advertisement must accurately reflect the test result. The use of the original wording is recommended.
- The advertisement must contain a reference / link to the exact source of the test result.
- Numerous testing institutes stipulate terms and conditions for the use of their test results or require licensing and payment for their use, especially when used for advertising purposes. The terms and conditions or licensing agreements of the testing institute must be strictly adhered to.
- Depending on the circumstances of the individual case, additional requirements may apply in addition to the aforementioned conditions for advertising with test results.
LEGAL CONSEQUENCES OF NON-COMPLIANCE WITH THE RULES
If these rules are not complied with in advertising with test results, this constitutes misleading conduct or a violation of the rules on comparative advertising under the UWG (Act against Unfair Competition). In such a case, competitors of the advertiser or associations for the protection of competition or consumers are entitled to take action against this legal infringement. This occurs in the form of a cease-and-desist letter (submission of a cease-and-desist request) or a lawsuit. Potential claims include the cessation of anti-competitive advertising, rendering of accounts, damages or lost profits, and the publication of the settlement or judgment.
An advertisement that violates the terms and conditions or licensing agreements of the testing institute entitles the institute to demand cessation and to assert claims for damages or lost profits.
