In a recent judgment the German Federal High Court decided that advertisements referring to testing of products must include additional information about the relevant test criteria.

In the case, a consumer organisation had sued a major chain store for misleading advertising.
On its website, an   epilator was stated to be “LGA tested quality” and “LGA tested safety”.
Although the epilator had 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 exact test criteria which were applied.

According to the Court, safety tests are material information to a consumer making an informed decision.
Therefore companies are obliged to provide a short summary about the tests and the criteria applied (technical standards and norms; test methods).
The information must be provided in the advertisement, since references in the store would be too late.
However, not all information has to be included directly in the advertisement.
References to a website with further information are generally sufficient.

Practical directions

Quality ia a big selling factors and plays an important role in advertising.
Companies should ensure in advertisements which are directed at customers that they comply with the Federal High Court in order to avoid legal action by competitors and consumer organisations.
With EU certification marks having been introduced to the EU trade mark system, the decision is of importance also from a trade mark law perspective.