Test results are enormously important to consumers. They serve as a neutral guide in an opaque market and help compare products and services objectively. Credible tests enjoy high trust because they provide independent and factual information about quality and value.
It becomes problematic when advertising is deliberately disguised as an objective test result. This form of covert advertising deceives consumers, distorts competition and can significantly impair the market position of competitors.
When does a competition violation through deception occur?
What is covert advertising?
A fabricated test result is almost always covert advertising. Advertising messages are deliberately and covertly placed in media without the commercial purpose being recognisable. For the consumer it appears to be an independent test result – but in reality it constitutes misleading advertising.
Legally, covert advertising is a competition violation under § 5a UWG. The lack of labelling deceives the consumer. The advertiser fails to disclose the actual purpose of the recommendation – and thereby profits doubly: financially, and through the improved image conveyed by the supposedly neutral recommendation.
Editorial content vs. covert advertising
Not every article containing recommendations is automatically disguised advertising. Editorial content may lawfully contain recommendations provided there is a clear separation between editorial content and advertising. It is only when editorial content and advertising are so intermingled that the reader can no longer distinguish them that covert advertising – and thus a competition violation – exists.
The special nature of test results
The particular problem with test results lies specifically in the deception through apparent neutrality. Credible test results provide independent consumer information – objective, neutral and factual.
On the internet, however, there are numerous "test pages" where the publisher earns from affiliate links on every purchase of the "tested" products. This precludes the objectivity of a test. If the consumer is not adequately informed of this, prohibited covert advertising may exist.
Hidden advertising through fabricated test results therefore constitutes not only a deception of the consumer, but also a harm to competitors and fair competition. Tests provide an incentive for quality and innovation in competition – disguised advertising undermines precisely this mechanism.
Prohibited disparagement of competitors
Deceptive test results can also constitute unlawful disparagement of competitors – expressly prohibited under § 6 para. 2 UWG.
Permissible comparative advertising
In principle, comparative advertising is permissible under § 6 para. 1 UWG. Comparative advertising is any advertising that directly or indirectly refers to a competitor or the goods or services offered by them and makes them identifiable – for example when competing products are also "rated" in deceptive test results. Comparative advertising is in principle a legitimate means of competition, as it can inform consumers and make differences such as price, quality or characteristics transparent.
Impermissible comparative advertising
The advertising comparison becomes impermissible, however, when the advertising is unfair, misleading and/or disparages the competitor or their products – regulated in § 6 para. 2 UWG.
Fabricated test results may fall within the prohibition of § 6 para. 2 no. 5 UWG as a special case of misleading advertising under § 4 no. 2 UWG, insofar as competitors' products are disparaged in a derogatory and unfair manner within the "test results". The decisive factor is the perspective of an averagely informed, attentive and reasonable consumer and the overall context.
Particularly impermissible are:
- Statements that contain no useful information for the consumer
- Statements that merely influence the consumer in an unfair manner
- Statements containing untrue statements of fact
- Insults or unfair accusations
Legal claims in the event of unfair advertising
Possible claims in the case of fabricated test results:
- Injunction claim (§ 8 UWG): The affected company can demand removal of the misleading advertising and cessation of future publications.
- Damages claim (§ 9 UWG): This can compensate for financial harm already incurred. Only the harmed competitor is entitled to bring this claim.
Consumer associations can also assert injunction claims as "qualified entities" to protect consumer interests (§ 8 para. 3 no. 3 UWG). They can also issue cease-and-desist letters to businesses and demand a penalty-backed cease-and-desist undertaking.
Cease-and-desist letter and court enforcement
- Cease-and-desist letter: The first step is usually the out-of-court cease-and-desist letter. The infringer is requested to cease the unfair conduct and provide a penalty-backed cease-and-desist undertaking (§ 12 UWG).
- Court proceedings: If the cease-and-desist letter is unsuccessful, court proceedings follow – with an injunction claim and, where applicable, a damages claim. Unlike a cease-and-desist letter, the court issues the injunction.
- Preliminary injunction: Court emergency proceedings can quickly and provisionally prevent a threatened legal violation. Urgency deadlines (typically 4 weeks) must be strictly observed.
How to proceed upon discovering a fabricated test article?
- Secure evidence: Take screenshots with URL and date to document the anti-competitive conduct.
- Cease-and-desist letter: A legally sound cease-and-desist letter should be issued to achieve rapid cessation.
- Preliminary injunction: Where urgent, a court prohibition can be applied for in parallel with the main proceedings – due to short deadlines, prompt action is essential.
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Conclusion
Disguised advertising harms both competitors and consumers. A swift and legally correct response safeguards fair competition, stops the manipulation of consumers and protects against lasting damage to image and revenue. The legal framework provides affected companies with effective instruments against it.
Are you affected by covert advertising or fabricated test results – or have you yourself been accused of unauthorised use?
