In a recent judgment the German Federal High Court decided that advertisements referring to testing and quality of products must include additional information about the relevant test criteria.
In the case at issue, a consumer organisation had sued a major chain store operator for misleading advertising. On its website, a company’s epilator was stated to be “LGA tested quality” and “LGA tested safety”. Although the product had actually been awarded both certificates from a well-known independent testing organisation, the Federal High Court confirmed the finding of misleading advertising as the company had failed to indicate the test criteria which were applied.
According to the Court, safety and quality tests are material information to an average consumer making an informed purchase decision. Therefore companies are obliged to provide at least a short summary about the tests and the criteria applied (such as technical standards and norms, test methods etc.). The information must be provided in the advertisement, since references in the store or online shop alone would be too late. However, for practical reasons, not all information has to be included directly in the advertisement. References to a website with further information are generally sufficient as well.
Quality and certification marks are big selling factors and play an important role in advertising. Companies should ensure in advertisements which are directed at customers or consumers including those in Germany that they comply with the Federal High Court in order to avoid warning letters or legal action by competitors and/or consumer organisations. With EU certification marks having been introduced to the EU trade mark system, the decision is of particular importance also from a trade mark law perspective.
File no. I ZR 26/15