No Difference Between Brick-and-Mortar and Online Sales – BGH I ZR 43/23
Deceptive packaging remains deceptive packaging, whether it is displayed on store shelves or sold online. The method of distribution does not matter, as the Federal Court of Justice (BGH) clarified in its ruling on May 29, 2024 (Case No. I ZR 43/23). Advertising such a product on the internet is misleading and constitutes a violation of competition law, according to the BGH.
If a package is only about two-thirds full, it is considered deceptive packaging. The packaging and contents do not have a reasonable ratio. This misleads consumers into believing there is more product than there actually is, according to the law firm MTR Legal Attorneys, which advises, among other areas, in industrial property protection.
The First Civil Senate of the Federal Court of Justice, responsible for competition law, has now made it clear with its ruling on May 29, 2024, that advertising such a product is misleading for consumers and violates the Act Against Unfair Competition (UWG).
Tube Only Two-Thirds Full
In the underlying case, the producer advertised a men’s wash gel on its website. The tube contained 100 milliliters. The tube was depicted standing on its cap on the website. The wash gel was clearly visible in the lower transparent part of the tube. The upper part of the tube, which narrows sharply towards the seam, was no longer transparent. In fact, the tube was only filled up to the beginning of the opaque part with wash gel.
A consumer protection association filed a lawsuit against this. This presentation suggested that the tube was almost completely filled, which was not the case. The advertisement was therefore unfair.
Higher Regional Court Düsseldorf with a Differentiated View
The lawsuit was unsuccessful in the initial instances. The Higher Regional Court (OLG) Düsseldorf took a differentiated view during the appeal proceedings, distinguishing between brick-and-mortar retail and online sales. The Higher Regional Court found that the packaging suggested a larger filling quantity than was actually present, thus violating § 3a UWG in connection with § 43 (2) Measurement and Verification Act (MessEG). The court admitted that the customer could be deceived when purchasing in a physical store if they perceived the tube in its original size. However, the case was about online sales, and no violation of § 43 (2) MessEG could be determined, as the actual size of the packaging remained hidden from the consumer on the internet.
BGH: Consumer Deception
However, the BGH saw this differently in the appeal and upheld the injunction. The BGH clarified that the reasoning of the OLG Düsseldorf does not hold. According to § 43 (2) MessEG, it is prohibited to market packaging if its design and filling suggest a larger filling quantity than it actually contains. This was the case here, according to the judges in Karlsruhe. The regulation serves to protect consumers from such deceptive packaging, regardless of the distribution method.
According to § 5 UWG, there is also a deception of consumers about the actual filling quantity, the BGH further elaborated. A deception of consumers that is also actionable under competition law generally exists if the packaging of a product does not have a reasonable ratio to the actual filling quantity. This was the case here, as the tube was only about two-thirds filled with the wash gel. This was neither technically necessary nor did the packaging’s design reliably prevent the deception of a larger filling quantity, the judges in Karlsruhe made clear. Therefore, the manufacturer must cease the misleading advertising, the BGH decided.
Misleading advertising and violations of competition law can lead to warnings and injunctions. To avoid this, legal advice should be sought. MTR Legal Attorneys provides comprehensive advice in industrial property protection.
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