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Germany: Defining “Das Original” (“the original”) and when the term may be used

Claims like “the original” or “the real”, suggesting a certain stance of a product are classics of advertising speech. In a recently published decision in case 13 U 77/18, the Higher Regional Court of Celle (“the Court”) required a factual basis for such a claim – in this case “Das Original” (“the original”) – in order to not render it misleading under German Unfair Competition law.

Case background

The defendant advertised his product “A.”, a powder-based dietary supplement, in a radio-advertisement spot as follows:

“Denn nur das Original hat ein klinisch getestetes Erfolgsrezept. A. – einfach, weil es funktioniert.”

(“Because only the original has a clinically-approved recipe of success. A. – Easy, because it works.”]

The plaintiff argued that the use of “das Original” (“the original”) in relation to the defendant’s product in the spot was unfair according to Sec. 5 para. 1 no. 1 of the German Act Against Unfair Competition (“UWG”). This states that unfairness shall have occurred where a person engages in a misleading commercial practice which could cause the consumer or other market participant to take a commercial decision which he would not have taken otherwise. It specifies that a commercial practice shall be regarded as misleading if it contains false statements or other information suited to deception regarding the main characteristics of the goods or services.

The decision

The Court lifted the decision of the Regional Court (which had rejected the plaintiff’s claims) and sentenced the defendant to cease and desist from using the phrase “A. The original” in advertisements for his product. The Court held that the phrase could mislead the relevant public as to the main characteristics of the plaintiff’s goods.

It stated that, contrary to the conclusion of the Regional Court in its first instance decision, the relevant public would not understand the claim as a mere reference to the defendant’s product’s current market leadership.

Rather, the claim would be understood as indicating that the product “A” was the first powder-based dietary supplements product on the German market. While the term “Original” would normally signify something genuine, as opposed to a counterfeit or imitation, the definitive article “das” (“the”) would, in addition to this, imply a singularity of the product.

Given that at least one competing product had been on the market prior to the defendant’s product “A”, the Court found a violation of Sec. 5 para 1 no. 1 UWG and granted the cease & desist claims.

What happens now?

The Court’s decision was rendered in preliminary injunction proceedings, meaning that it cannot be appealed to the German Federal Court. Hence, the defendant would have to force main action proceedings to get a chance of a review by the German Federal Court. However, even if the defendant forced main action proceedings, it seems rather unlikely that the case would be admitted to the German Federal Court, so that the Court’s decision will likely stand.

Next steps

The decision highlights the importance of a careful approach when using catchy advertising claims suggesting a certain uniqueness / singularity of a product: It is crucial to carefully consider, a) the perception of the intended claim by the relevant public, and b) whether the facts really support the perception.