Finally, an end to “Known From” faux ads on purchased items!

In a landmark ruling of September 21, 2023 (case reference: 15 U 108/22), the Higher Regional Court (OLG) of Hamburg clarified that advertising with the slogan “Known from” is only permissible in the case of editorial coverage and not in the case of paid advertising. In addition, a reference or link is required for known media. This decision is particularly relevant because the practice of advertising with paid articles has become fashionable in recent years, especially among numerous dubious coaches and service providers. These groups often use the supposed credibility of renowned media to put their own offerings in a better light, which is now significantly restricted by the ruling.

Legal basis

The court based its decision on various norms of the Unfair Competition Act (UWG), in particular Section 5a UWG and Section 8 UWG. Section 5a UWG deals with unfair business acts that may mislead consumers by withholding essential information. In this case, the lack of a reference was considered to be such material information. Section 8 UWG, in turn, makes it possible to be sued for injunctive relief if there is a risk of repetition. These standards serve to protect consumers from misleading and unfair advertising by creating a clear legal framework for communications between businesses and consumers. They help to maintain confidence in the market and the integrity of competition.

Reasons for the judgment

The court argued that advertising with “Known from” can mislead consumers if there is no reference or link to editorial coverage. The reasoning behind the ruling states: “The statement ‘Known from’ creates the impression in the consumer’s mind that the product or service was presented editorially in the named media. The absence of a reference or link to such coverage is therefore misleading.”

The court based its decision on § 5a para. 1 UWG, which states that anyone who misleads a consumer by withholding material information acts unfairly. The lack of a reference was considered by the court to be such material information.

Furthermore, the court emphasized that the consumer has a considerable interest in the reference to be able to understand the meaning of the advertising statement. Withholding this information is therefore likely to cause the consumer to make a business decision that he would not have made otherwise. The court stated: “The lack of a reference or link deprives the consumer of the opportunity to verify the credibility of the advertising claim. This may lead him to make a business decision he would not have made had he known the full information.”

The court also addressed the issue of paid editorials and clarified that advertising with “Known from” is particularly misleading in this case. “When the coverage being advertised is actually a paid editorial, it reinforces the consumer’s misleading nature. In such a case, it is not independent editorial reporting, but a paid advertising effort that does not have the same credibility.”

Practical effects

This ruling by the Hamburg Higher Regional Court has far-reaching consequences for companies wishing to advertise their products or services. Those who advertise with the slogan “Known from” must now be particularly careful. Violation of these legal requirements can lead to warnings, injunctions and even severe fines.

Failure to comply with these guidelines could also significantly affect consumer confidence in the brand or product. At a time when transparency and credibility are becoming increasingly important, this could have serious, long-term negative effects on business.

It is therefore advisable for marketing departments and advertising agencies to carefully review existing and planned advertising campaigns. If advertising claims cannot be substantiated by actual editorial coverage in said media, alternative advertising strategies should be considered.

In the context of other forms of advertising, such as advertising with test reports or seals from Stiftung Warentest, a similar picture emerges. Here, too, the correct presentation of the facts is crucial. False or misleading information may also lead to legal consequences. In both cases, the overriding goal of the case law is to protect consumers from misleading information and to ensure greater transparency in the market.

Conclusion and recommendations for action

This ruling by the Hamburg Higher Regional Court marks an important milestone for the advertising industry and consumer protection. It creates clear guidelines that benefit both businesses and consumers. The decision promotes honesty in communication between suppliers and customers, which ultimately benefits the market as a whole.

Companies are now required to carefully evaluate their advertising strategies and adjust them if necessary. Involving legal experts in the ad campaign creation process can help avoid pitfalls and ensure legal compliance.

For consumers, the ruling means an additional layer of security. You can now assume with greater certainty that advertising claims must withstand critical scrutiny. This strengthens consumer confidence and facilitates informed decisions.

In addition, the ruling also has a signal effect for other areas of competition law and could serve as a precedent for future decisions. It is thus not only a step towards more transparent advertising, but also a step forward in the entire jurisprudence in the field of unfair competition.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.