Who: Fair Squared vs. Einhorn
Where: Duesseldorf (Regional Court), Germany
When: 26 November 2015
Law stated as at: November 2015
Einhorn, a German condom manufacturer, used the statement “1 package, 7 condoms, equivalent to up to 21 orgasms” on a condom package. Fair Squared, a company that is – inter alia – manufacturing and selling condoms too, was of the opinion that this slogan was misleading and filed for an interim injunction against Einhorn. The regional court of Duesseldorf issued the injunction. Einhorn appealed but the court has now upheld its interim injunction (case no. 14c O 124/15) . The court is still assuming a violation of section 4 para 2 No. 2 MPG [Medizinproduktegesetz] (Medical Products Act) which prohibits medical devices to be placed on the market if they bear misleading names, particulars or presentations, in particular in cases where the erroneous impression is given that the treatment with the medical device is certain to be successful.
Based on this the court held that the statement leads to a deception of the relevant public about the fact that a condom must only be used once (in accordance with ISO 4074:2002). Einhorn argued that this fact was common knowledge and the message was associated with other humorous statements so the public would take it for granted that this statement was rather a joke. In fact, a so called “value added chart” indicated calorie consumption and the information that the product “may contain traces of pixie dust”. Thus, according to Einhorn, the relevant public would not consider the statement “up to 21 orgasms” as a factual one but merely a humoristic message. Apart from that, 21 orgasms can – according to Einhorn – actually happen while using one condom because not only the person wearing the condom has an orgasm but the wearer’s partner may have (even multiple) orgasms or he may be in bed with more than one woman so there could be even more orgasms. Moreover, a crossed out “2” on the package side made very clear that there is never a “second round” for the wearer of the condom.
The court did not follow these arguments. It does not matter how the advertiser wanted his claim to be understood but only how the claim is actually being understood objectively. This understanding must, primarily, be based on the wording of the claim. In this case the wording of the statement was ambiguous and was not sufficiently clarified by the other information provided on the packaging and the leaflet. It was neither given in a solely humoristic context, because there was several other information provided on the packaging that Einhorn clearly wanted to be taken seriously. It was, e.g., stated in the “value added chart” that Einhorn donated 50% of its revenues to non-profit organizations. Above that, Section 4 para 2 No. 2 MPG does not require that an actual deception takes place but the mere risk of a deception is sufficient. Moreover, when it comes to advertising referring to health, especially stringent requirements regarding, correctness, unambiguousness and transparency apply.
Why this matters:
As always, in Germany misleading business practices are considered to be unfair competition and can be challenged by competitors or certain protection associations (e.g. for consumer rights or against unfair business behaviour). To avoid this there are several possibilities to disclose relevant information not in the advertising slogan itself but in the context (e.g. by way of using asterisks) so the slogan can remain catchy and casual. Yet, when it comes to health related marketing speech, German courts cannot take a joke and, thus, respective marketing language needs to be absolutely clear and correct.
The strict regulations of the MPG refer to “medical products” which cover a wide range of products (not only condoms but also glasses, contact lenses, or hearing devices for instance fall under the MPG). Beyond that, the further regulations of the German HWG [Heilmittelwerbegesetz] (Medical Devices Advertising Act) apply. Inter alia, section 3 HWG also prohibits misleading advertising for drugs, medical products, treatments, objects or any other products which attributes to the product a therapeutic effectiveness or effect which it does not possess. Violations of the MPG or the HWG can particularly lead to claims of competitors for omission and damages. Some violations can also constitute administrative or even criminal offences, so it is strongly recommended to draft carefully and double check marketing speech when it comes to products or claims that are related to health in any way.