Marking products with the prefixes “eco” or “bio” is subject to control under EU Regulation no 834/2007. Their use in a manner contrary to the Regulation may be qualified as an act of unfair competition under German law. In the case before the German Federal Court of Justice (BGH), the admissibility of using the “bio” sign in relation to mineral water was assessed. The judgment was issued in the case of the defendant producer of mineral water from Neumarkt who in 2009 introduced mineral water called “BioKristall” to the German market. This action was questioned by the Central Office for combating unfair competition which brought an action for omission against the entrepreneur.
In the justification of the judgment of 13 September 2012, BGH indicated three main criteria, the cumulative fulfilment of which entitles producers to use the term “bio” in relation to the mineral water they sell.
First of all, “bio” mineral water must be as free as possible of harmful substances and by-products that may be produced during its production. “Bio” mineral water should have a greater degree of “purity” than traditional mineral water.
Secondly, “bio” mineral water must not only be obtained using environmentally friendly methods but also further production stages, including the bottling process, must be carried out in a way that do not adversely affect the environment. However, these rules do not have to be followed when producing traditional mineral water.
Finally, as the last criterion it was pointed out that authorities authorised to issue certificates regarding the acceptability of marking products with the term “bio” must use criteria based on common sense and adhering to a specific factual situation.
According to BGH, the above-mentioned criteria were specified due to the fact that consumers expect such features from mineral water marked with the term “bio” and it is these features that distinguish “bio” products from traditional ones.
- judgment of the German Federal Court of Justice (BGH) of 13 September 2012, reference no I ZR 230/11