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infringement through
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Top position
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Can a medical practice advertise on the Internet that it is the “market leader” or “reference center” for penis enlargement? And what about before and after pictures that are supposed to show the effects of a surgical procedure?
One practice, many great promises
The proceedings focused on the internet advertising of a medical practice for phalloplastic surgery. The practice presented itself on several websites as the “German Center for Urology and Phalloplastic Surgery”. It advertised with terms such as “market leader”, “competence center” or “reference center”, quoted impressive operation figures and showed before and after pictures of penis enlargements.
A competitor who also offers penis enlargement took legal action against this. The Frankfurt Regional Court had already largely upheld the claim. The Higher Regional Court of Frankfurt am Main confirmed this result on appeal in its ruling of 19.03.2026 – Ref. 6 U 332/24 and even extended the injunctive relief to an additional point.
What was really behind the “center”?
The court found that the “center” mentioned in the advertisement did not exist. In fact, an individual doctor carried out the procedures in his own practice. The Irish company acting as the operating company only provided marketing and secretarial services. It had neither its own practice premises nor medical staff and had no contractual relationship with the operating doctor.
One of the websites also used photos of doctors who appeared to be members of the center. In fact, in at least one case it was a purchasable stock photo of a man with a stethoscope. According to undisputed findings, the doctor depicted did not exist.
According to the files, at no time was there an established organization which, from the point of view of the relevant public, could be regarded as a (medical) center in the sense of the contested designation, for which only one doctor would have worked.
Misleading top position advertising: Why “market leader” does not apply here
Anyone who advertises a leading position on the market – be it as “market leader”, “leading specialist in Europe” or “competence center for 25 years” – must actually hold this position and be able to prove it in the event of a dispute. The OLG Frankfurt a. M. has confirmed that all statements of this kind are misleading.
This was true even if the doctor performing the operation was personally one of the most experienced surgeons in his specialty in Germany. This was because the advertising did not refer to him personally, but to the alleged “center” – and such a center did not exist. The market leadership of a center cannot be based on the performance of a single doctor in his individual practice.
The court also did not consider the alleged special surgical technique with which the practice claimed to be “leading” to be substantiated. The medical practice did not succeed in substantiating a method that could be distinguished from other surgeons.
Before and after pictures: What the Medicinal Products Advertising Act says about it
A second central point of contention concerned before-and-after images that were used on the websites to show the results of penis enlargement operations. The Frankfurt Higher Regional Court confirmed that these images violated the Medicinal Products Advertising Act (HWG).
This law prohibits the advertising of surgical plastic surgery procedures to alter the human body without medical necessity with comparative depictions of the condition before and after the procedure. An exception applies if it is clear from the advertising itself that the procedure is medically indicated.
This is exactly what was missing here. The medical practice had claimed that all the procedures were medically indicated. However, they were unable to explain what medical indication the specific procedures shown were based on, and the advertising itself did not contain any information on this either. In addition, the costs of the procedures were not reimbursed by either statutory or private health insurance companies, which argues against medical necessity.
The fact that the images were pixelated – allegedly for anonymization reasons – did not change the legal situation. The court emphasized that what matters for interested parties is whether a difference is recognizable – and it was.
The purpose of protection […] is to curb unobjective influences through potentially suggestive and misleading advertising for medically unnecessary interventions, to protect the freedom of choice of affected persons and to prevent these persons from exposing themselves to unnecessary risks that could endanger their health.
What does this mean for medical practices and clinics?
Designations such as “center”, “competence center” or “reference center” presuppose a corresponding organizational reality. A single doctor in an individual practice does not meet this requirement. Claims of a leading position such as “market leader” must be objectively verifiable and refer to the actual advertising unit, not to individual persons involved.
Before-and-after images for plastic surgery procedures are generally prohibited unless the medical indication is recognizable from the advertisement itself. Pixelated or otherwise altered images also fall under the ban, provided the before and after comparison is still recognizable.
Conclusion
Anyone who advertises for patients on the Internet with superlative terms or impressive image comparisons is exposing themselves to considerable legal risks – especially if the advertised market position cannot be substantiated.
Doctors should also be aware that advertising with before and after pictures for non-medically necessary plastic surgery procedures is not permitted. Even pixelation does not help. If you want to refer to a medical indication, you should be able to prove it.
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