Advertising for a disinfectant with the claim "skin-friendly" is inadmissible
The First Civil Senate of the Federal Court of Justice, which is responsible for competition law among other things, has ruled that the use of the claim "skin-friendly" in advertising for a disinfectant is inadmissible.
Facts:
The plaintiff is the Central Office for Combating Unfair Competition. The defendant is a drugstore chain operating nationwide. It offered a disinfectant for sale which is a biocidal product within the meaning of the Biocidal Products Ordinance. The product label states: "Ecological universal broad-spectrum disinfectant" and "Skin-friendly - organic - without alcohol".
The plaintiff considers the claim to be unfair due to a breach of the Biocide Ordinance. She is claiming injunctive relief and compensation for pre-trial warning costs from the defendant.
Process history so far:
The Regional Court upheld the action. On appeal by the defendant, the Court of Appeal partially amended the judgment of the court of first instance and dismissed the application for injunctive relief with regard to the claim "skin-friendly".
With its appeal allowed by the Court of Appeal, the plaintiff continues to pursue the application for injunctive relief with regard to the advertising statement "skin-friendly".
The Federal Court of Justice stayed the proceedings by order of April 20, 2023 (GRUR 2023, 831) and referred a question to the Court of Justice of the European Union for a preliminary ruling on the interpretation of Art. 72 (3) sentence 2 of Regulation (EU) No. 528/2012 (Biocidal Products Regulation). The Court answered the question in its judgment of June 20, 2024 (C-296/23, GRUR 2024, 1226).
Decision of the Federal Supreme Court
The appeal was successful. The Federal Court of Justice overturned the appeal judgment insofar as it was to the detriment of the plaintiff and restored the decision of the Regional Court. Contrary to the opinion of the Court of Appeal, the claim "skin-friendly" to describe a disinfectant falls under the prohibition of Art. 72 para. 3 sentence 2 of the Biocide Regulation as a "similar indication". The plaintiff is therefore entitled to injunctive relief against the defendant under the aspect of a breach of law pursuant to Section 8 (1) sentence 1 in conjunction with Section 3 (1), Section 3a UWG. The claim "skin-friendly" emphasizes a positive characteristic of the advertised disinfectant and is therefore likely to trivialize the risks of the biocidal product. The emphasis on the positive property also contradicts the aim of the Biocide Regulation to minimize the use of biocidal products.
Judgment of the BGH dated October 10, 2024 - I ZR 108/22
Lower courts:
Regional Court Karlsruhe - Judgment of March 25, 2021 - 14 O 61/20 KfH
OLG Karlsruhe - Judgment of June 8, 2022 - 6 U 95/21
