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Legally original, 100% misleading

A German court decided that advertising with the words “100% original” is misleading and illegal. But how else to distinguish your products from an army of fakes on online marketplaces? Read on to find out.

Advertising and law are sometimes on a collision course. It’s easy to see why: sellers want to talk up their products, and if iron-clad legislation protecting consumers and competition weren’t there, the whole phenomenon of advertising could become a shouting match of “mine is the best!”

So when an advertiser seems to go too far, a court case may follow to determine if they played according to the rules. That’s exactly what occurred in a case that we can refer to as “100% original.”

The case

Here’s what happened: a seller on eBay in Germany used the term “100% original” to advertise the sneakers they sold. But using this term is against the law in Germany, as Annex 10 of the Law against Unfair Competition states that “untruthfully stating or creating the false impression that legally existing rights constitute a special feature of the offer (translated from German by globaleyez)” is against the law.

And guess what: receiving a 100% original product is a legally existing right of consumers.

Picture of a sign saying “original”
Picture of a sign saying “original”

The argument

It may seem like splitting hairs, but hear us out. Counterfeiting is against the law. We can all agree that it’s harmful for brands and consumers alike. Sometimes, using a counterfeited product may even put the consumer in lethal danger; just think of fake beauty products containing toxic material, or a bad quality, counterfeited car part that can break and cause an accident.

But if counterfeiting is against the law, then receiving a 100% original product is actually implicit in every purchase. Every product should be 100% original. So if a seller advertises 100% original sneakers, that basically sounds like: “Sneakers! I’m selling sneakers!”

Furthermore, using a slogan like this could also imply that your competitors are not selling 100% original items. Which further implies that they are criminals, selling items prohibited by law.

Then again, at times when counterfeiters are getting more sophisticated and it’s harder than ever to determine if a product is original or fake, highlighting the fact that the actual product listed is indeed original may seem necessary to some sellers. Especially when even marketplaces like eBay set up authentication centers to determine the authenticity of sneakers sold on the platform.

Unfortunately, not even the courts are in agreement about the matter.

The confusion

In the past few decades, various German courts that had similar cases presented to them came to different conclusions.

For example, the District Court of Frankfurt decided that advertising with the slogan “100% original” states a self-evident fact and is thus misleading because consumers may think that receiving an original product is a special feature instead of a basic right.

On the other hand, when the District Court of Cologne had a similar case, it decided that advertising with this very same slogan is a simple distinction from counterfeited products and doesn’t necessarily create the impression in consumers that they’re receiving a special feature with the originality of the product.

So when even courts are confused about the matter, what are brands to do?

The solution

Making a distinction between counterfeit and original products seems necessary in our times when fake goods are flooding online (and offline) marketplaces everywhere in the world.

But is saying “100% original” the best way to do so?

A picture of a high-quality sneaker with a tacky “100% original” sign attached to it
A picture of a high-quality sneaker with a tacky “100% original” sign attached to it

In our opinion, advertising with that may seem a bit cheesy. Even if you don’t get caught in a court case (or you happen to get a court that agrees with the District Court of Cologne), stating this fact about your product implies that people who look at your listing would doubt the originality of it. This in turn implies your lack of confidence in your own product.

So what to do instead? Some brands decided to take drastic measures and removed their products from various marketplaces, including even Amazon. But that may not be feasible for smaller brands that need the exposure provided by large marketplaces.

Luckily, there’s a less drastic way to guarantee your product won’t be drowned by fakes: remove all the counterfeit products around your listing.

A marketplace without fakes is called a clean marketplace, and that’s the only way to ensure the flawless online presentation of your products, as well as your brand’s reputation as a whole. And a comprehensive online brand protection program can help you achieve that goal.

It goes like this. globaleyez’s select monitoring services (marketplace, social media, image and domains) ensure we detect fake or grey market listings of your brand’s products. Our test purchase service collects tangible evidence about the origin and nature of those products. Then, finally, our enforcement service ensures the swift removal of those products from the marketplace. So all that remain are your authorized, 100% original products.

If you want to show your customers your products are original without actually saying the words, contact globaleyez and let us show how we can help your brand.

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