The I. Civil Senate of the Federal Court of Justice, which is responsible inter alia for competition law, has ruled that the designation "ENERGY & VODKA" is not a claim prohibited 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 ingredient. The mixed drink at issue, called "ENERGY & VODKA", consists of 26.7% vodka and 73.3% a caffeinated soft drink and thus has an alcohol content of 10%.
The plaintiff, Schutzverband der Spirituosen-Industrie e.V., considers the name of the drink "ENERGY & VODKA" to be a violation of European Union regulations. It has therefore filed a claim for injunctive relief against the defendant.
The Court of Appeal considered the designation "ENERGY & VODKA" to be a nutritional claim within the meaning of Article 2(2)(4) of Regulation (EC) No 1924/2006 and found an infringement of the second subparagraph of Article 4(3) of that Regulation. The claim "ENERGY & VODKA" suggested to the consumer that the drink had particular positive nutritional properties. The consumer attributes to the drink a stimulating effect on his organism. For a drink with an alcohol content of 10%, the claim was therefore inadmissible.
The Federal Supreme Court overturned the appeal ruling and confirmed the decision of the Regional Court, which had dismissed the action.
The designation "ENERGY & VODKA" of the defendant's beverage complained of by the plaintiff is - according to the Federal Supreme Court - not an indication within the meaning of Art. 2(2) No. 1 of Regulation (EC) No. 1924/2006. It neither directly nor indirectly expresses that the beverage has special properties. The designation "ENERGY & VODKA" merely refers to a characteristic of the product which all foodstuffs of the corresponding type possess. In such a case, the designation lacks the specific objective which Regulation (EC) No 1924/2006 is intended to regulate in the case of nutrition and health claims. In the case in dispute, it is clear to consumers from the list of ingredients and the other information on the contested presentation of the product that it is a mixed drink consisting of vodka and an energy drink. The corresponding "energetic" effect of this drink is not a special characteristic within the meaning of Article 2(2)(1) of Regulation (EC) No 1924/2006, but is generally present in energy drinks.
The designation "ENERGY & VODKA" also does not violate the European Union's trademark regulations for spirits under Regulation (EC) No. 110/2008. According to these regulations, vodka must have a minimum alcohol content of 37.5%. However, this does not exclude the possibility that an energy drink containing vodka may contain a reference to this spirit in its designation.
Judgment of the Federal Court of Justice of 9 October 2014 - I ZR 167/12 - ENERGY & VODKA
Lower courts:
OLG Hamm - Judgment of 10 July 2012 - 4 U 38/12, WRP 2012, 1572
LG Paderborn - Judgment of 10 January 2012 - 6 O 28/11, juris
Source: Press release of the BGH
Goldberg Attorneys at Law 2014
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-mail: info@goldberg.de
