In its judgement of 22.11.2012, the 4th Civil Senate of the Higher Regional Court of Karlsruhe ? External Senates in Freiburg ?, ordered the distributor of several fresh cheeses - Rondelé in the varieties "Garlic from the Garonne and fine herbs", "Walnuts from the Dordogne", "Goat's cheese from Poitou" and "Sea salt from the Camargue" to refrain from marketing or advertising them if the packaging with a height of approx. 5.9 cm (with lid) has a content of 125 g of fresh cheese and the plastic cup, which is surrounded by a cardboard sleeve on the side and on the underside, has an indentation on one side which is approximately 1.0 cm deep and approximately 3.5 cm wide and is rounded off at the bottom.
The product was distributed in such a way that an inner packaging was surrounded by a cylindrical outer packaging.
The Offenburg Regional Court had initially dismissed the action brought by the Zentrale zur Bekämpfung unlauteren Wettbewerbs (Central Office for Combating Unfair Competition), but its appeal to the Higher Regional Court was successful.
The Senate stated:
The plaintiff was entitled to injunctive relief under the Unfair Competition Act (UWG) in conjunction with §§ 7 para. 2 EichG and 11 para. 1 no. 1 LFGB (Food and Feed Code). By offering, marketing and advertising the products, the defendant acted unfairly. The packaging used violated the calibration law. According to § 7 (2) of the EichG, pre-packaged products must be designed and filled in such a way that they do not pretend to contain a larger quantity than they do. The purpose of the law was to regulate the market in the interest of the market participants in the sense of § 4 no. 11 UWG. A violation of the Weights and Measures Act was at the same time anti-competitive behaviour and a misleading commercial act within the meaning of the Unfair Competition Act. The Verification Act was intended to prevent deception by the packaging itself, to protect the consumer from being given the impression that, due to the external appearance of a pre-packaged product, he could purchase the product in a quantity which roughly corresponded to the external appearance of the packaging, although the packaging actually contained considerably less. The criterion was which idea the average consumer, who was reasonably well-informed and reasonably observant of the product, had of the contents of the packaging in question on the basis of its external design, and whether that idea differed from the actual contents of the packaging. In this case, a significant proportion of consumers would assume, on the basis of the specific design of the packaging, that the quantity contained in the packaging was greater than it actually was. Since the consumer could not perceive the indentation and taper of the inner plastic container before opening it, the misconception was developed that the volume and weight of the filling quantity corresponded to the external appearance. The impression of a larger filling quantity is further reinforced by competing products that have smaller packaging despite a larger filling weight. The two weight indications on the banderole of the packaging and on the lid foil did not decisively prevent the packaging from being misleading. The packaging as a whole was not designed in such a way that the consumer, who was adequately attentive to the situation, would inevitably notice the weight indication. On the contrary, there was a risk that a significant proportion of consumers would either not notice the weight information when making a purchase or would nevertheless make a decision based solely on the visual impression of the size.
The appeal has not been admitted.
Karlsruhe Higher Regional Court, Judgment of 22.11.2012, Ref.: 4 U 156/12 -
Previous instance: Offenburg Regional Court
§ 7 EichG : Requirements for prepackages
(2) Prepackages shall be designed and filled in such a way that they do not pretend to contain more than they do.
§ 11 LFGB: Provisions for protection against deception
(1) It shall be prohibited to place foodstuffs on the market under misleading names, indications or presentations or to advertise foodstuffs generally or in individual cases with misleading representations or other statements. Misleading shall be deemed to exist in particular where
1.
in the case of a foodstuff, designations, indications, presentations, representations or other statements which are suitable for deception are used with regard to properties, in particular with regard to the type, quality, composition, quantity, shelf life, origin, provenance or method of production or extraction....
Source: Press release of the OLG Karlsruhe
Goldberg Attorneys at Law 2012
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law
E-Mai: info@goldberg.de
