The 4th Chamber for Commercial Matters has granted the action for injunction brought by the Wettbewerbszentrale against Focus-Verlag with regard to the awarding and publication of so-called “Doctors’ Seals” (Case No. 4 HKO 14545/21).
The plaintiff objected to the fact that the defendant awards seals to physicians in return for payment, identifying them as so-called “Top Mediziner” or “Focus Empfehlung”. Once a year, the defendant publishes the magazine “FOCUS Gesundheit” under the title “Ärzteliste”. Against a license to be paid at a value of approximately 2,000 EUR net, physicians receive a seal under the heading “FOCUS RECOMMENDATION”, which they can then use for advertising purposes and also do so (stating the specialty or the district).
The Regional Court ruled that the defendant violated the prohibition of misleading statements under unfair competition law by awarding the seals, which, according to the defendant’s own submission, are to be used by physicians for advertising purposes.
With the seals, the impression is created in their addressed public that the physicians in question, who are designated as “TOP physicians” or advertised as “FOCUS recommendations”, have been distinguished on the basis of a neutral and proper examination and thus occupy a top position among physicians in the same specialist discipline. The seals issued by the defendant against payment of a not inconsiderable so-called license fee have the appearance of a test mark and are also used as such in advertising in the media presented.
In this regard, the Board states the following: The target public would perceive the seals licensed by the defendant similarly to the test seals of Stiftung Warentest and assume that the physicians in question have been awarded on the basis of a neutral and appropriate test. According to life experience, the reference to a test mark is of considerable importance for the consumer’s business decision. The consumer expects that a product or service bearing a test mark has been tested by a neutral and expert body for compliance with minimum requirements on the basis of objective criteria and that it has certain characteristics which he considers essential for the quality and usability of the goods. In fact, however, even according to the defendant’s submission, the quality of medical services cannot be determined and compared with measuring instruments in a test laboratory. Rather, of the criteria that, according to the defendant’s submission, are taken into account in its recommendation lists, there are criteria that are based on exclusively subjective elements, such as colleague recommendation or patient satisfaction.
Nor can the defendant be heard to argue that the licensing of so-called seals is a dependent, downstream act of the medical lists, which is also covered by freedom of the press. It is true that in the facts underlying the decision of the Federal Constitutional Court NJW 2003, 277, Juve Handbook, freedom of the press also extended to the refinancing of editorial content. However, this statement by the Federal Constitutional Court referred solely to the fact that in the case to be decided there, it could not be established that the publication of rankings was used in an immoral manner to encourage the abandonment of advertisements and that ad-financed media are regularly dependent on motivating the placement of advertisements.
However, the present case is fundamentally different from this:
The anti-competitive nature of the test seals in the present case arises from the fact that they misleadingly leave the area of the editorial, evaluative contribution and give the impression that an evaluation according to objective criteria is taking place. In addition, media regularly rely on financing themselves through advertisements, but not through the awarding of seals of approval for a not inconsiderable fee. That this is an unusual, not absolutely necessary way of financing editorial contributions is shown by the defendant’s own submission that the distribution of the seals was only a reaction to the so-called “uncontrolled growth” that occurred about ten years ago. Before that, the magazines with the lists of doctors were obviously financed in a different way.
The ruling is not yet legally binding, but in my opinion the decision is correct and it is to be hoped that the same nonsense that Focus, for example, also carries out with lawyers will finally disappear from the market.