Advertising for a medicine against diarrhoea with the slogan "L. stops diarrhoea" is inadmissible if the medicine does not stop diarrhoea within a few hours. The 6th Civil Senate of the Schleswig-Holstein Higher Regional Court, which is responsible for competition matters, prohibited the use of the slogan in a recently published judgement.
The facts of the case: The defendant is a pharmaceutical supplier. In Germany it sells, among other things, the preparation L., the active ingredient of which consists of freeze-dried lactic acid bacteria. It advertised the drug inter alia with the claims "L. stops diarrhoea". In its advertising, it referred to a scientific study which showed that the duration of diarrhoea was reduced by an average of 1.3 days to just under two days when treated with L. compared to a group that had received placebos.
The plaintiff association, whose purpose is to protect fair advertising in the field of health care, warned the defendant against misleading advertising because it had not been proven that the medicine stops diarrhoea, i.e. that success occurs quickly, immediately and clearly. The defendant rejected the warning. In its view, the advertising slogan only created the expectation in the addressee that diarrhoea would be "noticeably alleviated" within a few hours. The association then sued for an injunction against the advertising.
For the reasons: The advertising statement "L. stops diarrhoea" is misleading and thus constitutes an unlawful commercial act under the Unfair Competition Act (UWG). The slogan creates the expectation in the addressee - which is indisputably disappointed - that the diarrhoea will be completely over within a few hours (at least not after 2 days), i.e. that all symptoms will have disappeared by then. If the diarrhoea is not completely over within a few hours, but only noticeably alleviated, this expectation is not fulfilled. The court does not follow the defendant's argumentation that the term "stopping" merely denotes the beginning of a process. According to common usage, a car, for example, does not "stop" at a traffic light already when it slows down more and more as it passes the traffic light, but only when it actually stops already at the traffic light.
Even if the defendant has in the meantime replaced the slogan "L. stops diarrhoea" with the slogan "L. fights diarrhoea" in its internet advertising, this does not remove the danger of repetition (which is a prerequisite for the injunctive relief). Especially since it still advertises in print with the original slogans.
Schleswig-Holstein Higher Regional Court, Judgment of 30.01.2014, Case No. 6 U 15/13
Source: Press release Schleswig-Holstein Higher Regional Court
Goldberg Attorneys at Law 2014
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)
E-mail: info@goldberg.de
