In the judgment of 21st July 2016, the German Tribunal of Justice defined/stipulated what criteria must be met so that a product could be provided with a so called quality mark.
A quality mark is a label providing concise and simple information about a given product and also giving a guarantee that an independent competent entity has checked its quality before certification according to objective criteria. In this way, quality marks significantly influence the market behaviour of an average consumer and are quite important for such a consumer to make a decision about purchasing a specific product.
In the case in question, on the Internet the defendant was offering personal hygiene products which were provided with quality marks “LGA tested Quality” and “LGA tested safety”. However, the advertising for these products did not contain either information concerning the criteria to be met by the products before these are given the above-mentioned quality marks or data concerning the place where a client could get such information. The marks contained only a general mention of quality and safety requirements being met.
From the ruling of the Tribunal, it appears that the defendant committed an act of unfair competition consisting in withholding important information. § 5a II of the German act on combating unfair competition (UWG) provides that information shall be considered withheld when a consumer cannot make use thereof in the process of making a decision about a purchase.
In this case, the rights to quality marks “LGA tested Quality” and “LGA tested safety” were gained under a licence agreement. The licence agreement allowed the defendant to inspect reports on product testing, and consequently also to determine the criteria to be met by the products before certification.
BGH found that the conduct consisting in using quality marks in advertising for which a consumer cannot determine objective criteria is unfair. In the opinion of BGH, quality marks considerably influence the market behaviour of an average consumer before conclusion of a contract for a product, and the information concerning these marks (including the criteria to be met by products) should be regarded as essential information within the meaning of §5a UWG.
Having considered the interests of a seller on one hand, and the interests of a consumer trying to collect full information about a product on the other, BGH gave priority to the interests of a consumer.
From the ruling discussed herein, it appears that a seller using a given quality mark, in order to meet the requirement of ensuring the possibility for verification of the criteria subject to which such mark is granted, should to see to it that a clear summary of the said criteria is placed on his own or someone else’s web page and refer to that page in advertisements.
- judgment of the BGH of 21st July 2016, file reference number I ZR 26/15