The German Federal Tribunal of Justice [BGH] decided the important issue concerning the use of geographic designations to mark products and the possibility of misleading consumers in this manner.
The proceedings concerned conformity with the law of the wrapping and the way of offering in an Internet shop the salt advertised as “Raab Himalaya Salz gemahlen”. It is a product sold in shops with health food or the so called “Reformhaus” which specialize in purely natural products. The price of salt from the Himalayas is considerably higher than the price of regular table salt. On wrappings of the salt sold by the defendant there was a description “Kristallsalz” (crystalline salt) and below “Kristallines Speisesalz aus der Region des Himalayas” (crystalline edible salt from the region of the Himalayas) while the word “Himalayas” was in a different colour and highlighted.
In fact, the salt did not come from the Himalayas themselves but from the Pakistani province Punjab situated about 200 km away. During the trial it was raised that according to some this region can still be qualified as the foreland of the Himalayas. However, the BGH found that the case was not about exact geographic findings but about the impression that a specific graphic layout could make on an average consumer. For this purpose, the Tribunal used the model of an average sufficiently informed consumer and on that basis recognized that the word “Himalaya” had been excessively displayed. This could have misled consumers as to the actual origin of the goods.
Claims of the plaintiff were based on § 127 section 1 of the German act on trademarks in conjunction with § 8 section 3 subsection 2 of the German act on combating unfair competition which prohibit to use in trading geographic designations for goods or services which do not come from the place or region which such designation indicates if the use of such designation can entail the risk of being misleading as to the origin of goods.
In addition, the BGH decided the important issue of responsibility of Internet shop owners in case of offering products marked with misleading geographic designations. In the opinion of the Tribunal, they are liable for an act of unfair competition even when using ready descriptions of products delivered by a manufacturer or distributor of goods.
The judgment in the case of “Himalaya Salz” confirms that the line of judicature of German courts concerning the use of geographic designations is quite rigorous and Internet dealers should pay attention to whether wrappings and descriptions of products offered by them cannot be regarded as misleading.
- Judgment of the Federal Tribunal of Justice of 31st March 2016, file reference number I ZR 86/13