The publication of customer reviews on a company's website can be advertising that is covered by a cease-and-desist declaration subject to a penalty. This was decided by the 6th Civil Senate of the Higher Regional Court of Cologne, thus confirming a judgement of the Regional Court of Aachen.
The case was based on an action brought by a competition association against a trading company located in the vicinity of Aachen. The company had advertised so-called "magic washing balls" for use in washing machines and dishwashers with the claim "saves detergent". The association demanded that the company cease the advertising as misleading, because the advertising statement was not based on sound scientific knowledge. Thereupon, the defendant issued the requested cease-and-desist declaration with a penalty clause.
Before and after issuing the cease-and-desist letter, the defendant published several customer reviews of this product on its corporate website: "I use less detergent", "I needed less detergent and the laundry has a better grip and is not as hard", "It really works...It also means that you need less detergent and save money".
The 6th Civil Senate ruled that these customer reviews were also covered by the declaration to cease and desist. It was clear from the declaration that it was intended to cover advertising statements which were in the area of customer comments at the time the declaration was made. Customer comments were advertising because they could create confidence in the performance of the product and promote the sale of the product. The comments were also advertising by the defendant. The defendant would recognizably allow customers to rate the products solely in the hope that the positive ratings would predominate. The possibility of rating the product was therefore the defendant's own offer. The defendant's obligation to cease and desist could only be understood as meaning that such comments were also to be deleted which were precisely due to the effect of the product previously advertised by the defendant. Therefore, the defendant was also obliged by the cease-and-desist declaration to delete the customer comments on its website.
The appeal was not admitted
Judgment of the Regional Court of Aachen of 26.08.2016 -42 O 15/16
Judgment of the Cologne Higher Regional Court of 24 May 2017 -6 U 161/16
Source: Press release of the Cologne Higher Regional Court
GoldbergUllrich Attorneys at Law 2017
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
