When does a customer review become advertising that must be attributed to the provider of a product? German courts have been dealing with this question for quite some time. The Bochum Regional Court (judgement of 21 November 2024 – 14 O 65/24) now had to decide in the case of a coffee roasting company, thereby supplementing the prevailing case law.
Customer reviews with serious consequences
A roasting company advertised some of its coffees on the Internet as “digestible” and “easy on the stomach”. This was objected to by a trade association that prosecutes competition offences on behalf of its members. As part of the dispute, the defendant roastery issued a cease-and-desist declaration with a penalty clause and discontinued its own advertising with the contested terms. However, it continued to allow reviews of its products by its customers, which in turn contained the terms “digestible” and “easy on the stomach”. From the plaintiff’s point of view, this constituted a breach of the cease-and-desist declaration; the defendant naturally took a different view.
“Adoption” in case law
The Bochum Regional Court therefore had to decide, in the light of a Federal Court of Justice decision in a similar case, when an advertiser “appropriates” third-party statements.
As a reminder: The proceedings before the BGH (judgement of 20 February 2020 – I ZR 193/18) concerned an Amazon offer for kinesiology tape that was advertised with misleading statements. Although the provider itself discontinued the dubious claims, the Amazon reviews remained in place. The BGH ultimately ruled that the provider was not liable for such reviews as it had not adopted them as its own. The decisive factor for this is whether a provider recognisably wants to assume responsibility for the content of third-party statements or gives the imputable impression that it identifies with them. In fact, however, the customer reviews are labelled as such, are separate from the actual offer and are usually not attributed to the provider by the users, as they know that Amazon does not grant the provider access to the customer reviews.
The situation was different in a case before the Bochum Regional Court (judgement of 21 November 2024 – 14 O 65/24). On the one hand, the defendant controlled its product reviews, as can be seen from the distinction between reviews from verified and non-verified buyers. Obviously, the verified reviews should be given special importance. In addition, the reviews are advertised at the bottom of each overview page and also at the bottom of a product information page. The reviews were thus directly visible to interested customers. The defendant recognisably wanted to use them as advertising and not just for its own information gain.
The fact that the defendant used a rating tool from another provider for its reviews did not help either. Even if the defendant did not maintain the review tool used on its website, it still had to influence its provider in order to fulfil its obligation to cease and desist. In the court’s view, statements such as “easily digestible” and reviews such as “Even my somewhat sensitive stomach does not have any problems with this particular type of coffee when roasted correctly” therefore constituted an infringement by the defendant. The court therefore considered the action brought by the trade association to be well-founded.
Conclusion
The Bochum Regional Court thus appears to have established new indications as to when statements by third parties are deemed to have been “appropriated”. At the same time, however, in view of the (rather brief) grounds for the judgement, it must be noted that the differences to the BGH case are not quite as great as the court makes them appear.
Amazon also makes an explicit distinction between verified and non-verified buyers. In any case, the ratings are already recognisable as an average number of stars in the product preview. And the effect of the reviews on other customers is likely to be similar here and there.
It is therefore not readily apparent from the judgement of Bochum District Court why the two cases should be treated differently. The proceedings could therefore go to the next instance. However, the decisive difference will lie in the fact that sellers on Amazon have no influence whatsoever on customer reviews.