"Made in Germany" – How reliable is information about origin?

The protection of geographical indications of origin according to national German law has been incorporated into trademark law since 1 January 1995 (Sections 126 et seqq. MarkenG) and can be applied to all types of geographical information of origin. In addition to the trademarks and the business designations, the geographical indications of origin are also included under the generic term of the trademark. Nevertheless, this is not an individual right such as the right to a registered trademark, but is basically designed as protection under competition law. The claims under competition law are also applicable (Sections 3, 5 Para. 1 Sentence 2 No. 1, Para. 2 UWG). The definition of geographical origin is essentially the same as that used in Europe. The decisive factor is that the consumers addressed are not misled by the information.

The so-called generic designations are not covered by the protection of geographical indications of origin. The name of a product that refers to the place of manufacture or the area, but which is currently only understood as a quality specification for the product, is deemed to be the generic designation. Since 1990, the term “Pilsener” or “Pils” has therefore been seen as a purely generic designation. Even in the case of the Black Forest Cherry Cake, it is currently only disputed whether it contains a certain content of cherry water.

Special features also apply in food law and pharmaceutical law.

In the event of incorrect or misleading information, both competing companies as well as Centres for Protection against Unfair Competitions and authorised associations against unfair practices may assert claims for injunctive relief, information and compensation.

The German courts apply a strict standard of assessment. According to the case law, the slogan “Made in Germany” may only be used if the product has been manufactured by a German company in the Federal Republic of Germany. However, it does not have to have been produced from draft to final completion in Germany. The decisive factor is that the essential components and the determining characteristics of the goods, which in the eyes of the public make up their value, are based on a German service (cf. Hamm Higher Regional Court, ref.: I-4 U 95/12, Higher Regional Court of Düsseldorf with its ruling dated 05.04.2011, ref.: I-20 U. 110/10).

The Federal Court of Justice (BGH) confirmed the strict case law practice in 2016 with its “Himalayan salt” ruling. According to this, a supplier may not advertise with the statement “Salt from the Himalayas region” if the salt actually comes from the Pakistani province of Punjab 200 kilometres away. Since then, the salt offered in retail has generally been called “from Pakistan”.

In December 2019, the BGH decided that the designation “Culatello di Parma” represents an impermissible allusion to the protected designation of origin “Prosciutto di Parma” and may therefore not be used as a geographical indication of origin in this form, provided the manufacturing location is not Parma. The attempt made in 2011 to circumvent the legal requirements by establishing a city with the name “Parma” in China would also fail according to German law, provided that the “Parma ham” produced in China does not have the same quality (Section 127 Para. 2 MarkenG).

Another fascinating case comes from Munich. Here, the Centre for Protection against Unfair Competition has filed an action for injunctive relief against a company located on the Reeperbahn in Hamburg, which distributes canned beer, due to the use of the beer label “REEPER B.”. In addition, the label listed in small letters the advertising terms “HAMBURG” and “ST. PAULI” as a reference to the sales location on the Reeperbahn and the predominant attitude to life there. However, the reference to the brewery town in Mönchengladbach is prominently printed on the back of the can. In the opinion of the Plaintiff, the impression is created that the beer originates from Hamburg, or the brewing village is located on the Reeperbahn, although it is actually brewed and filled in Mönchengladbach. Among other things, the questions are disputed as to whether the reference to the brewing town is sufficient, whether the artisan craft beer culture can still be referred to as a Hamburg brewing tradition, and how the term “REEPER B.” is understood by the consumers. The relocation of the production site has also been the subject of proceedings against the breweries Warsteiner and Oettinger in recent years.

In the course of the proceedings, it has accidentally become known that the appellant is the fourth largest beer group with its headquarters in Denmark. It is particularly controversial that the appellant itself also sells or sold beers such as “Brooklyn Lager” and “Lüneburger Pilsener”, although these beers are brewed and filled in its brewery in Lübz. It also advertises its ASTRA canned beer with the slogan “Brewed with love in the heart of Hamburg”, although the canning system is located at the city boundary to Lower Saxony. The Centre for Protection against Unfair Competition is therefore accused of giving, in contravention of the law, preference to its member company - the internationally active beer group - which itself operates with “unclean hands”.

Autor: Viola Rust-Sorge