The defendant manufactures dairy products and sells a fruit curd cheese called "Monster Cheek". On the top of the packaging it uses the slogan "As important as your daily glass of milk! The plaintiff considers this to be unlawful within the meaning of § 4 No. 11 UWG in conjunction with Articles 9 and 10 of the so-called Health Claim Regulation (Regulation (EC) No. 1924/2006), because the advertising slogan contains both nutritional and health claims about food, but further required information is missing. Moreover, the slogan was misleading according to § 11 (1) of the German Food and Feed Code (LFGB) because it did not refer to the significantly higher sugar content compared to milk. She filed a claim against the defendant for injunctive relief and payment of the warning costs.
The Regional Court dismissed the action. The court of appeal ordered the defendant to cease and desist.
The First Civil Senate of the Federal Court of Justice (BGH), which is responsible, inter alia, for competition law, stayed the proceedings and referred the question to the Court of Justice of the European Union for a preliminary ruling as to whether the duties to provide information pursuant to Article 10(2) of Regulation (EC) No. 1924/2006 had to be complied with already as of the date of application of this Regulation on 1 July 2007.
The Federal Supreme Court assumed that the advertising slogan was not misleading and did not constitute a nutrition claim within the meaning of Article 2(2)(4) of Regulation (EC) No 1924/2006, but did constitute a health claim within the meaning of Article 2(2)(5) of that Regulation. The BGH takes this from the decision of the ECJ in the "Deutsches Weintor" case (judgment of 6 September 2012 C 544/10, GRUR 2012, 1161 nos. 34-36). Accordingly, the term "health claim" is to be understood broadly.
The success of the appeal therefore depends on whether the provision of Article 10(2) of Regulation (EC) No. 1924/2006 was already applicable in 2010, the period relevant for the assessment of the case. This is supported by the wording of Article 28(5) of the Regulation, which does not mention Article 10(2) of the Regulation. According to the contrary view, the systematic context of the regulation speaks in favour of the fact that the information obligations pursuant to Art. 10(2) of Regulation (EC) No 1924/2006 only apply from the - still pending - adoption of the list of authorised health claims pursuant to Art. 13(3) of the Regulation.
Order of the Federal Court of Justice of 5 December 2012 - I ZR 36/11 - Monsterbacke
Stuttgart Regional Court - Judgment of May 31, 2010 - 34 O 19/10 KfH
Stuttgart Higher Regional Court - Judgment of February 3, 2011 - 2 U 61/10
ZLR 2011, 352
Source: Press release of the BGH
Goldberg Attorneys at Law 2012
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law