Duty to make reference for seals of approval used in advertisement

In its judgement of 30 December 2014 (15 U 76/14) the Higher Regional Court of Düsseldorf (OLG) decided on the requirements and scope of the duty to make reference to test requirements and results when using seals of approval in advertisement.

On its website, the defendant offered a hair removal device referring to the seals of approval “LGA tested Quality” and “LGA tested safety”. However, the defendant did not make reference to the test requirements or results. The plaintiff, a registered association with the purpose to combat unfair competition, alleged an infringement of the German Unfair Competition Act (UWG) and sought an injunction.

First of all, the OLG Düsseldorf made clear that sec. 5a II UWG, which qualifies the withholding of essential information from the consumer as unfair competition, was applicable. There was no special national or EU law (including the UCP directive) that would preclude the applicability.

Furthermore, the Court found that the requirements of sec. 5a II UWG were fulfilled. The core principle of the section was to protect consumers against the withholding of essential information suited to influence the consumer’s decision. The indication of a reference to the test requirements of a seal of approval constituted such “essential information” if the seal of approval used referred to the quality and/or safety of the product. For product tests, the German Federal Court of Justice had already established that the findings of such tests may only be used in advertisement in conjunction with easily accessible background information. The consumer needed to have easy access to the test and its criteria. The same applied with regard to seals of approval. However, the Court held that the question of “essentiality” had to be determined in each case individually.

Further, the Court ruled that the same applied in cases where the seal of approval is protected as a Community trademark. Neither the guarantee function nor any other trade mark function was affected by the duty to make reference. The OLG also took into account interests such as trade or business secrets of the advertising companies or of third parties. Although such interests could generally have an impact, the mere abstract possibility that such secrets could be touched was not sufficient to deny the duty to make reference.

With respect to the requirements for the information to be provided, the Court confirmed that they generally depended on the possibilities and limitations of the means of communication used. In the case of online advertisement the Court found that the provision of a link leading to the relevant information was sufficient.

The judgment has not yet become legally binding. The appeal proceedings are currently pending at the German Federal Court of Justice (file ref. no. I ZR 26/15).

The decision in question is not an individual decision. The OLG Düsseldorf has equally assumed a duty to make reference in another case in which a company had used the claim “TÜV-tested” in its advertisement. In this case, the product had actually been tested by TÜV, however, a reference to the test requirements and results was missing (OLG Düsseldorf, judgment of 25 November 2014, file ref. no. I-20 U 208/13). In the light of these decisions, it is advisable to generally make clear reference to the test requirements and results if tests or seals of approval are used in advertisement. Otherwise, there is a risk of a – fee-incurring – warning letter combined with a demand to render a cease-and-desist declaration subject to a contractual penalty.