Vegan drink must not be advertised as an egg liqueur alternative – Regional Court of Hamburg, Case No. 406 HKO 76/23
A vegan drink must not be advertised as an “egg liqueur alternative.” This was decided by the Regional Court of Hamburg in a ruling dated April 23, 2024 (Case No. 406 HKO 76/23).
More and more people are switching to a vegan diet. The question of how vegan foods may be labeled in retail has been occupying the courts for some time. For example, the European Court of Justice (ECJ) ruled on June 14, 2017 (Case No. C-422/16) that purely vegan products may not be labeled as milk, cheese, or butter. According to EU law, these designations are exclusively reserved for products of animal origin. Combinations such as tofu butter or veggie cheese are also inadmissible, according to the commercial law firm MTR Legal Rechtsanwälte, which provides counsel in, among other things, competition law.
However, the designation of a purely plant-based product as a “cheese alternative” does not constitute misleading advertising, according to a decision by the Higher Regional Court of Celle dated August 6, 2019. The term merely establishes a relation to the dairy product cheese, making it sufficiently clear that the product is not cheese itself but an alternative to it (Case No. 13 U 35/19).
Labeling as “Egg Liqueur Alternative” Violates Competition Law
The Regional Court of Hamburg has now ruled that a vegan drink must not be advertised as an “egg liqueur alternative,” “vegan alternative to egg liqueur,” or with similar terms. Such labeling is anti-competitive because it may create a mental association in the consumer’s mind with the protected product category “egg liqueur.”
The case was brought by the German Spirits Industry Association. The complaint was directed against an online retailer marketing a vegan drink using terms like “egg liqueur alternative.” The association argued that this violated the absolute protection of designation and imitation as laid out in the EU Spirit Drinks Regulation. As a vegan drink, the product cannot fulfill the legally required minimum egg yolk content needed for egg liqueur or “liqueur with added egg.” Therefore, any advertising referring to egg liqueur would be unfair and constitute a breach of competition law.
The defendant, however, argued that the product name made it clear that it was not actual egg liqueur and that there was no impermissible reference to the term.
Violation of Protected Designation
The Hamburg court ruled in favor of the Spirits Industry Association. It clarified that the contested advertisement violated the absolute protection of designation as outlined in Article 10(7) of the EU Spirit Drinks Regulation. Except in a few cases, this provision prohibits the use of legally defined designations for beverages that do not meet the relevant requirements. This also applies when such terms are combined with words like “type,” “style,” “flavor,” “brand,” or similar, the court stated. Consequently, it is not permissible to market a drink as “egg liqueur” if it does not comply with the requirements of the Spirit Drinks Regulation.
In the case at hand, the use of the term “egg liqueur” served as an indirect reference to the spirit category “egg liqueur.” The labeling aimed to make the consumer understand the drink as a vegan alternative to egg liqueur. This creates a direct association between the advertised vegan product and egg liqueur. According to the Hamburg court, such advertising is impermissible. It violates market conduct rules and is unfair within the meaning of Section 3a of the German Act Against Unfair Competition (UWG).
Sanctions for Competition Violations
The ruling highlights the need for extreme caution when naming and advertising vegan products. Various regulations must be observed to avoid violations of competition law. Such violations can lead to serious consequences, including cease-and-desist orders, warnings, or claims for damages.
To avoid time-consuming and costly legal disputes—or to pursue or defend against such claims—companies can turn to MTR Legal Rechtsanwälte. The firm has many years of experience in competition law and consistently advocates for the interests of its clients.
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