Falsified test results as disguised advertising: surreptitious advertising, misleading advertising and legal consequences

Surreptitious advertising and competition law infringements at a glance

Introduction: The significance and problems of falsified test results

Test results are extremely important for consumers. They serve as neutral orientation in a confusing market and help to compare products and services objectively. Reputable tests enjoy a high level of trust because they provide independent and objective information about quality and value.

It becomes problematic when advertising is deliberately disguised as an objective test result. This form of surreptitious advertising deceives consumers, distorts competition and can significantly impair the market position of competitors.

But when does unlawful advertising in the form of falsified, deceptive test results occur? What rights do affected companies have?

Your contact person:

Dr. Norman Dauskardt

Lawyer
Specialist lawyer for intellectual property rights

Phone: +49 30 36 41 41 90
E-Mail: kontakt@abd-partner.de

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1. surreptitious advertising: When is there an infringement of competition law due to misleading advertising?

When is surreptitious advertising present?

A falsified test result is generally surreptitious advertising. Advertising messages are placed in the media in a targeted and hidden manner without the advertising purpose being recognizable. For the consumer, it appears to be an independent test result, but in fact it is misleading advertising. In legal terms, surreptitious advertising is a breach of competition law according to § Section 5a UWG. The consumer is deceived by the lack of labeling. The advertiser fails to explain the actual purpose of the recommendation of the service or product and thus profits twice over: firstly financially and secondly through the improved image conveyed by the supposedly neutral recommendation.

Editorial content vs. surreptitious advertising

Not every article with recommendations is automatically disguised advertising. Editorial content may lawfully contain recommendations as long as there is a clear separation between editorial content and advertising. Only when editorial content and advertising are mixed in such a way that the reader can no longer distinguish between them is surreptitious advertising and therefore a breach of competition law.

Special features of test results and risks of disguised advertising

The special feature of test results lies in the deception caused by their supposed neutrality. Credible test results provide independent consumer information; they are objective, neutral and factual. However, there are numerous "test sites" on the Internet where the publisher earns money from every purchase of the "tested" products through affiliate links. This rules out the objectivity of a test. If the consumer is not sufficiently informed about this, this may constitute prohibited surreptitious advertising. Such independent tests should also not be underestimated when it comes to promoting competition. The tests provide an incentive for quality and innovation in competition and can therefore help providers to improve their products and services for this purpose. Hidden advertising through fictitious test results therefore not only misleads consumers, but also damages competitors and fair competition.

2. prohibited disparagement of competitors through surreptitious advertising and fake tests

Deceptive test results can also constitute an inadmissible disparagement of competitors. This is in § Section 6 (2) UWG expressly prohibited. The provision regulates the permissibility/inadmissibility of comparative advertising.

Permissible comparative advertising, § Section 6 (1) UWG

Background: In principle, comparative advertising is permitted and allowed, § Section 6 (1) UWG. Comparative advertising is any advertising that refers directly or indirectly to a competitor or to the goods or services offered by a competitor and makes them identifiable. This is the case, for example, with deceptive test results if products from competitors are also "rated" there. In principle, comparative advertising is a legitimate means of competition, as it can inform consumers and promote competition by making differences such as price, quality or features of products and services transparent. Due to the freedom of competition, a company must be able to present its services and products in relation to competitors.

Inadmissible comparative advertising, § Section 6 (2) UWG

However, the advertising comparison is inadmissible if the advertising is unobjective, misleading and/or devalues the competitor or its products or services. The prohibitions are set out in § Section 6 (2) UWG expressly standardized. The decisive factor is that the independence and neutrality of the information is no longer guaranteed. Falsified test results may fall under the prohibition of § Section 6 (2) No. 5 UWG, as a special case of misleading advertising, § 4 No. 2 UWGThe "test results" are deemed to fall within the scope of the "test results" if they disparage competitors' products in a derogatory and unobjective manner. Whether a disparagement exists depends on the perspective of an averagely informed, attentive and reasonable consumer. The overall context is decisive here. In particular, the following are inadmissible:

Statements that do not contain useful information for the consumer
Statements that merely influence the consumer in an unobjective manner
Statements that contain untrue statements of fact
Insults
or unobjective accusations.

3. legal claims in the event of unfair advertising with fake test results

But what legal options do companies have if they and/or their product or service are unfairly affected by a fake test? Possible claims in such a case:

Injunctive relief ( 8 UWG)The company affected by the falsified test results can assert a claim for injunctive relief, § 8 UWG. This not only enables the removal of the misleading advertising, but also the omission of future publications.
Claim for damages ( 9 UWG)The claim for damages can be used to compensate for financial losses already incurred in addition to the claim for injunctive relief, § 9 UWG. Only the injured competitor is entitled to make a claim.

Consumer associations also often become active. As "qualified entities", they can also assert claims for injunctive relief in order to protect consumer interests, particularly if the company concerned is a member of the association (§ Section 8 (3) No. 3 UWG). They can also issue warnings to entrepreneurs and demand that they submit a cease-and-desist declaration with a penalty clause.

4. legal route: warning and judicial enforcement

But what is the legal process?

WarningThe first step is usually a warning letter. In this out-of-court procedure, the infringer is requested to refrain from the unfair act. The person being warned has the option of ending the dispute without court proceedings by submitting a cease-and-desist declaration with a penalty clause ( 12 UWG). This means that all future articles in the same way - with falsified test results - must be avoided.
Legal proceedingsIf the warning is unsuccessful, legal proceedings will follow. In particular, a claim for injunctive relief ( 8 UWG), which is enforced by a court judgment. In contrast to the warning letter, the debtor does not make a declaration, but the court issues the injunction. Claims for damages (§ 9 UWG) can be asserted in these proceedings.
Interim legal protectionIn addition to the main court proceedings, summary proceedings can be used by the court to make a quick, provisional ruling in order to immediately prevent an imminent infringement of rights or to avert existing disadvantages. The decision, known as an interim injunction, is only valid provisionally until it is confirmed in the main proceedings. The periods of urgency, e.g. 4 weeks, must also be observed and complied with.

5. procedure in the event of the discovery of a counterfeit test article

But what should be done if a counterfeit test article is discovered?

The following steps are recommended first:

Secure evidenceIn order to be able to trace and later prove the possible anti-competitive act, evidence should be secured. In particular, screenshots with the URL and corresponding date should be taken.
Warning: A warning letter should be issued to stop the anti-competitive article as quickly as possible. To ensure that the warning is legally secure, it is advisable to seek the support of a specialized lawyer.
Interim legal protectionIn addition to initiating proceedings on the merits, interim legal protection can be applied for in order to obtain a court ban quickly. In this case, action must be taken quickly due to the short deadlines for maintaining urgency. Here too, advice should be obtained from a specialized lawyer can be utilized.

6 Conclusion: Stop surreptitious advertising in time and ensure fair competition

Disguised advertising harms both competitors and consumers. In such cases, swift and legally correct action ensures fair competition, prevents consumers from being influenced and protects against lasting damage to image and sales. The legal framework offers affected companies effective options for taking action against this unfair advertising.

7. let our lawyers for competition law advise you

You are a through Surreptitious advertising or falsified test results affected company and would like to defend yourself against it? You are welcome to contact us advice. We are happy to offer you a non-binding initial consultation.

As experienced lawyers in intellectual property law, we know how damaging fake test articles can be for the economic success of a company and its image.

We examine your legal options in the event of a possible false test article. If it is a case of unfair competition, we will support you in enforcing your rights: with warnings, injunctive relief and legal action.

Of course, we are also active on the other side: If you are accused of unauthorized use, for example, we will carefully examine the claims and defend you resolutely.

You are welcome to use the direct contact to our specialized lawyers for competition law. We are happy to offer you a non-binding and free initial consultation about your concerns and advise you and your company in Berlin, throughout Germany and Europe.

Call us now on the telephone number 030 36 41 41 90 e-mail us at kontakt@abd-partner.de or use directly our contact form!

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