The ban on advertising tobacco products in the press also applies to advertisements in which a cigarette manufacturer presents itself as a responsible company by referring to its products without directly advertising the sale of its products. This was decided by the First Civil Senate of the Federal Court of Justice (BGH), which is responsible for competition law, among other things.
The defendant is a company which distributes various tobacco products in Germany. It published an advertisement in the "Vorwärts" with the headline "Unser wichtigstes Cigarettenpapier" (Our most important cigarette paper) in large print and the following text:
"Order our Social Report. There are still companies that engage in unreflective window dressing and do not want to see things as they are. BAT not only faces up to critical questions, but also demonstrates commitment with a variety of actions. You can read about how we are dealing with the problem of cigarette consumption in the current Social Report. You can find it on our homepage www. ... or you can request a free print edition by fax ..."
Under this text, the cigarette brands distributed by the defendant in Germany were listed in small print.
The plaintiff consumer association objected to this advertisement as a violation of the legal prohibition to advertise tobacco products in the press. The Regional Court dismissed the action. The court of appeal upheld it.
The Federal Supreme Court has confirmed the judgement of the Court of Appeal. According to the BGH, the advertisement not only promotes the company, but also its tobacco products. In the ad, the defendant presents itself as a responsible company that is committed to addressing the issue of cigarette consumption through a variety of acts. Readers of the advertisement are more likely to buy the products of such a company than those of a competitor who is not concerned about the dangers of smoking. In any case, by naming the cigarette brands at the end of the ad, the reader can also concretely associate the advertised benefits with products he can buy. Thus, there is at least an indirect advertising effect which is sufficient for the applicability of the tobacco advertising ban.
Judgment of the Federal Supreme Court (BGH) of 18 November 2010 - I ZR 137/09
- Our most important cigarette paper -
Lower courts:
OLG Hamburg - Judgment of 19 August 2009 - 5 U 11/08, GRUR-RR 2010, 253
Hamburg Regional Court - Judgment of 14 December 2007 - 406 O 175/07
Source: Press release of the BGH
Goldberg Attorneys at Law
Attorney at Law Michael Ullrich, LL.M. (Information Law)
Specialist lawyer for information technology law (IT law)
E-mail: info@goldberg.de
