SEM and SEO: Quickest Ways to Risk a Legal Warning

Sandra May Last updated 14.07.2021
6 Min.
SEM SEO Legal
Last updated 14.07.2021

If you want to be successful with your online shop or website, you have to be findable first and foremost. In other words, the portal must be well listed on Google. This is where SEM (search engine marketing) and SEO(search engine optimization) help traders. But beware: The optimization attracts not only customers, but also warning letters.

The shock value of warning letters is as high as it ever was because these notices are usually accompanied by a hefty bill of charges. In this article, we present a selection of SEM or SEO practices most likely to land you with a warning.

Legal warnings for WooCommerce shops

You run an online shop with WordPress and WooCommerce? And want to avoid warning traps? Then read our additional articles Reasons for warnings in WooCommerce and WooCommerce to make it legally secure.

Guarantee promises are magnets for legal warnings

Guarantees attract the kinds of legal services issuing warnings by the bucketload like mosquitos to a lightbulb. Customers love to read things like “Samsung S8 with a twelve-year guarantee!". These promises create trust in the product and reduce uncertainty among buyers. Consumers believe “if anything happens, I'm covered." Many people aren’t aware, however, that a guarantee doesn’t mean a retailer or manufacturer can be held responsible over many years for every minor dent and bump.

There are different reasons for this misunderstanding. For one, consumers (and also online retailers), may not always know the difference between a warranty and a guarantee. Moreover, the widespread practice of advertising blanket guarantees does nothing to dispel this misconception. But where does the real issue lie? And why do such statements often lead to a warning? Well, this is at least indirectly due to the distinction between warranty and guarantee.

Guarantees and the law

Unlike the warranty, the guarantee is not regulated by law. If there is a material defect, i.e. a warranty case, all parties involved know exactly what to do. After all, the prerequisites and the handling of a warranty claim are regulated in the BGB. See the information on this from the Federal Ministry of Justice and Consumer Protection. With the guarantee it looks there differently. In short, the law basically only says that guarantees can be issued.

Guarantee and warranty
Information from the German Federal Ministry of Justice and Consumer Protection 

The law leaves the exact formulation up to the guarantor. The guarantors are usually the manufacturers or retailers of the product. Accordingly, those who promise a guarantee must also provide precise information about the conditions. This includes, among other things:

  • Who provides the guarantee?
  • What cases does the guarantee cover?
  • What must the customer do to make use of the guarantee?
  • How long is the guarantee for?
  • Do special conditions have to be fulfilled in order to make a claim under the guarantee? (for example, does the full service history of a car need to be recorded?)

Brands as ambassadors of trust

Well-known brands create trust among customers. They guarantee a certain level of quality and often also convey a particular attitude towards life. So why not advertise with them? When using brand names in terms of SEM, there are two surefire ways to get a legal warning in your mailbox:

No. 1: Use in the texts

The shoe looks very similar to one from Nike? Well then, why not use exactly this brand in the title? This is clearly something you shouldn't be doing! A brand name may only be used if it’s actually referring to a product from the brand in question.

This must also be taken into account for accessories. A "charging cable for iPhone" can quickly become an "iPhone charging cable". You risk a warning with the latter if the accessory is not really a branded product.

No. 2: Use in keywords

You can't see them, but they have an effect on search results: we're talking about keywords for SEO. If you want to dig really deep into your pocket, you simply lard your metadata with brand names. The whole thing is at risk of a warning, as it is a so-called reputation exploitation: The online retailer speculates on the fact that the user enters brand names that are familiar to him - and thus wants to profit from the level of awareness.

Keyword ideas in Ubersuggest
Caution: Keyword research tools also deliver brand terms

In principle, however, the brand names in the keywords (so-called brand keywords or competitor keywords) must not be omitted: If the result is marked as advertising, a third-party brand name may also be used. However, an experienced law firm should be consulted in individual cases. This is because a search result marked as an advertisement can also be a trademark infringement if the trademark is impaired in any way.

"CE and TÜV certified" - deliberate misleading through advertising

For certain products, customers attach particular importance to quality seals and test labels. Sometimes it just isn’t enough to buy the best product on the market, it should be the safest too. Of course, an online retailer has exactly this product in their catalogue and wants it to be found. Therefore, you can often read reassuring statements such as "TÜV tested" and "CE certified". Online retailers receive legal warnings over and over again for such sweeping statements because they can be misleading. Here come the top three misleading advertising statements:

CE certified or CE marking

Everyone has seen the CE marking before. Few people realize, however, that this marking isn't an indicator of quality or a certification mark. The manufacturer is merely declaring with the CE marking that the product "complies with the applicable requirements laid down in the Community harmonization legislation concerning their affixing".

The product doesn’t go through an official certification process. The statement that a product is CE certified is therefore not only misleading but simply false.

TÜV certified

On the other hand, the TÜV (Technical Inspection Association) carries out precisely such certifications in Germany and Austria. Any trust in the TÜV seal is therefore not pulled out of thin air. But it’s important to note that testing isn’t something manufacturers always opt for voluntarily. This testing procedure is mandatory for some products.

An online trader who emphasizes the fulfilment of this legal obligation as a special feature of their offer is in breach of competition law. This is advertising with self-evident facts and is liable to a warning.

Waste reducing packaging, encrypted connection, invoice with VAT

There are certainly some black sheep on the market for whom legal rules simply don’t seem to apply. Nevertheless, the following applies in principle: companies comply with legal requirements. Those who abide by the law may pat themselves on the back for it in private but they shouldn’t be using this generally expected compliance for advertising purposes.

This applies to the fulfilment of the obligation according to the packaging law or LUCID as well as to the encrypted connection. It is also self-evident that a dealer issues a reasonable invoice with VAT shown.

LUCID packaging register
Central Agency Packaging Register in Germany (LUCID)

The best of the best

The product is the best on the market? If the online retailer is convinced of this then they’ll also want the rest of the internet to know about it. It's best to put this claim in the product headline so that everyone can see it - and anyone poised to send you a warning letter won’t have to look very far for a suspected violation.

These and similar designations are what is known as puffing. Further examples include:

  • Best price
  • Spices of the highest quality
  • Top quality
  • Best
  • Highest
  • Best product on the market
  • Unique
  • One-of-a-kind
  • Unbeatable

In principle, such statements aren’t forbidden as long as the advertiser can prove them. Even if exaggeration is allowed in advertising, the fun stops when it comes to lying. Anyone claiming to sell the best product on the market needs to make sure they're offering exactly this product.

It’s not enough to be just a tad better than the rest. What’s required is a clear lead over the competition that’s not only short-lived and one that the competition can’t easily close in on. Seeking legal advice is advisable here too.

Conclusion: exaggeration only leads to short-lived success

If want to get a warning with SEM practices, you have to do one thing above all else: exaggerate wherever possible. If an online retailer is in the mood for a particularly expensive warning, they should also use brand names without owning a license. Trademark warnings are especially pricey and retailers can look forward to their wallets being lighter to the tune of 2,000 euros.

The legal protection of the website causes an enormous additional effort for many online merchants. The Händlerbund as a partner of RAIDBOXES helps: Find out more about the services, including special conditions for customers of RAIDBOXES.

SEM and SEO warnings: your questions

What questions do you have about warnings and search engine marketing? Feel free to use the comment function. You want more tips about online law? Then follow us on Twitter, Facebook or via our newsletter.

Sandra May has been a legal expert for the publication Online HändlerNews since September 2018. During her studies she specialized in the field of competition and copyright law. After completing her legal clerkship, she took the rather unusual step into journalism. Sandra is passionate about explaining complex legal topics in a clear way for everyone to understand.

Related articles

Comments on this article

Post a comment

Your email address will not be published. Required fields are marked with *.