Test Purchase in Unfair Competition Proceedings: Documenting Evidence Correctly

Before the purchase, define the facts to be tested. Is the issue a misleading price, a delivery promise that was not kept, a missing feature, a particular sales statement or the design of the ordering process? Each question calls for different records. An invoice alone rarely shows what the customer saw before ordering.

Put the purpose in the form of a verifiable factual question. For example: Which delivery period was promised on the product page, and what information did the customer receive after ordering? Another question could be whether a feature was advertised and was present in the goods delivered. The legal assessment follows the reconstruction of these facts.

The purpose defines the relevant evidence. Further orders, enquiries or artificial variations can change the situation. If several practices are to be tested, plan them separately and give each its own chronology.

The tester's position is central to the case law on test purchases. The Supreme Court refers to competitors and representatives of associations entitled to bring proceedings. Section 14 UWG provides the framework for civil standing. A person acting only out of general interest cannot automatically rely on this specific justification.

The tester must behave like another customer. A person should therefore not enter a shop under the pretext of making a purchase when the real intention from the outset is merely to inspect or access non-public areas. Within the ordinary purchasing process, the information provided should still be accurate and limited to what the purchase requires.

Standing and evidence are separate questions. Even a permitted purchase initially proves only the concrete sequence. Whether it supports an injunction, removal claim or another remedy depends on the conduct and all further requirements.

Prepare a short file with the purpose, the initial observation, the relevant URL or shop, the product or service, the planned sequence and the records to be preserved. Also note who instructed the test and why the specific event matters to the competitive relationship.

For an online purchase, the offer entry, product page, price, delivery information, availability, cart notices and order confirmation may form part of the plan. In a physical shop, record the location, date, visible signs, conversation, goods offered and payment record. The list must follow the allegation being examined.

Do not select only the screenshots that support the desired conclusion after the event. Preserve information that differs or could be favourable to the business as well. A complete file is more useful than a collection of isolated hits.

Keep the sequence as ordinary as possible. Use the intended ordering route, select the actual variant and record every material step with date and time. For an in-person purchase, include the shop, department, conversation partner and information actually given.

For an online order, full screen captures showing the URL, product variant, price, delivery statement and ordering step can be useful. Keep the confirmation, emails, dispatch information and payment record in their original formats. A screenshot recreated later is less informative than a version secured at the time.

Recordings of conversations or images of people and non-public areas require separate legal review. They are not standard elements of every test purchase. Use the least intrusive suitable method and record how the document was created.

The evidence chain begins with the situation before the purchase and ends only when the goods, service or business response have been recorded. Arrange the advertising, offer, order, payment, confirmation, dispatch, delivery, complaint and reply in chronological order. Preserve each file with its source and creation time.

For goods, the product name, model, variant, serial or batch information, packaging, leaflet and condition on arrival may matter if they relate to the question. For services, the description, appointment, conversation note, contract, invoice and service actually supplied may be relevant. Preserve the object before it is changed or discarded.

Keep an unchanged copy and a working copy. File names, export date and a short description help with later allocation. If a platform changes content, preserve the visible version and record the change instead of overwriting the earlier file.

The proceedings should make clear who perceived or received what and when. A chronological table can show which document relates to which event. For every file, add its source, time, device or location, responsible person and any later editing.

The tester may give evidence about the sequence. Their recollection should be recorded promptly in a neutral note. The note does not replace testimony and must not present assumptions as personal perception. Separate visible information, statements received and later legal conclusions.

Technical metadata, email headers, payment records and dispatch status can support the timeline. Each proves only the part it actually records. A dispatch record, for example, shows dispatch, but not automatically the content of the advertising that preceded it.

In written submissions, present the test purchase as a specific account of facts. Describe the offer, conduct, date, response and deviation so that the court can understand the event without reconstructing it itself. Assign each fact to the appropriate evidence, such as a document, witness, object or inspection. The burden of proof is not automatically shifted to the other side by doing so.

The legal classification follows from the established facts. Section 1 UWG provides the general framework for unfair commercial practices. Section 2 UWG may apply where the communication misleads about material characteristics or other circumstances. The test purchase supplies factual material, but it does not by itself decide the legal classification.

A file with many pictures cannot replace a clear offer of evidence. Organise the exhibits, refer to the relevant document in the text and explain differences between the offer, confirmation and actual performance. This shows both what the test proves and where its limits lie.

After a challenge, preserve the complete original situation before making further contact. Save the advertising, offer page, confirmation, goods or service and all correspondence. Record when the challenge arrived and which changes were made afterwards.

Separate operational measures from the evidence record. An advertisement may be paused for legal or commercial reasons. Record the time and responsible person so that the earlier version remains identifiable. A later correction does not automatically answer how the process operated before it.

Before making further test purchases, assess whether they would improve the evidence or alter the facts. Depending on the allegation, the business's counter-records, product changes or a plausible explanation may also matter. The aim is a complete and reviewable account of the specific event.