The First Civil Senate of the Federal Court of Justice, which is responsible, among other things, for competition law, has ruled that the designation “ENERGY & VODKA” is not a prohibited claim under Regulation (EC) No. 1924/2006 – the so-called Health Claims Regulation.
The defendant distributes non-alcoholic and alcoholic beverages of various international brands, including canned mixed drinks consisting of vodka and another component. The mixed drink in dispute, designated as “ENERGY & VODKA”, consists of 26.7% vodka and 73.3% a caffeinated soft drink, thus having an alcohol content of 10%.
The plaintiff, the German Association of the Spirits Industry (e.V.), considers the designation of the drink “ENERGY & VODKA” to be a violation of European Union regulations. He therefore sought an injunction against the defendant.
The appellate court considered the designation “ENERGY & VODKA” to be a nutrition claim within the meaning of Art. 2 para. 2 no. 4 of Regulation (EC) No. 1924/2006 and assumed a violation of Art. 4 para. 3 subpar. 2 of this Regulation. The claim “ENERGY & VODKA” suggested to consumers that the drink possessed special positive nutritional properties. Consumers attributed a stimulating, invigorating effect on their organism to the drink. Therefore, for a drink with an alcohol content of 10%, the claim was inadmissible.
The Federal Court of Justice overturned the appellate judgment and affirmed the decision of the Regional Court, which had dismissed the action.
The designation “ENERGY & VODKA” for the defendant's drink, which was challenged by the plaintiff, is – according to the Federal Court of Justice – not a claim within the meaning of Art. 2 para. 2 no. 1 of Regulation (EC) No. 1924/2006. It does not directly or indirectly express that the drink possesses special properties. The designation “ENERGY & VODKA” merely refers to a characteristic of the product that all foodstuffs of the corresponding category possess. In such a case, the designation lacks the specific objective that Regulation (EC) No. 1924/2006 intends to regulate for nutrition and health claims. In the present case, it is readily apparent to consumers from the list of ingredients and other information on the challenged product presentation that it is a mixed drink consisting of vodka and an energy drink. The corresponding “energetic” effect of this drink is not a special property within the meaning of Art. 2 para. 2 no. 1 of Regulation (EC) No. 1924/2006, but is generally present in energy drinks.
The designation “ENERGY & VODKA” also does not violate European Union trademark law provisions for spirits under Regulation (EC) No. 110/2008. While vodka must have a minimum alcohol content of 37.5% according to these provisions, this does not preclude an energy drink mixed with vodka from including a reference to this spirit in its designation.
BGH Judgment of October 9, 2014 – I ZR 167/12 – ENERGY & VODKA
Lower Courts:
Higher Regional Court Hamm – Judgment of July 10, 2012 – 4 U 38/12, WRP 2012, 1572
Regional Court Paderborn – Judgment of January 10, 2012 – 6 O 28/11, juris
Source: Press Release of the Federal Court of Justice
Goldberg Attorneys at Law 2014
Attorney Michael Ullrich, LL.M. (Information Law)
Specialist Attorney for Information Technology Law
Email: info@goldberg.de
