“Biohumus” – does a designation of a fertiliser can be misleading as to its composition?

In the unfair competition case which had its finale before the Supreme Court, the defendant was the producer of organic and organic-mineral fertilisers marketed under a name containing the word “biohumus”. The claimant accused the defendant of misleading customers as to the basic ingredient of the offered fertilisers, i.e. an act of unfair competition under Art. 10 of the Act on Combating Unfair Competition.

“Biohumus”, otherwise known as vermicompost, is a fertiliser of natural origin products with the use of earthworms. The defendant had the appropriate permit allowing his fertiliser to be marketed as well as a registered word and graphic mark corresponding to the logotype used on the packaging of the products. However, his product did not contain vermicompost which was listed in the composition on the label.

Both the Court of first and second instance decided that although the goods offered by the Defendant are not biohumus and do not contain biohumus, labelling them with the term “B.” does not create the risk of confusion, i.e. misleading customers. The Court of first instance assumed that the use of such term does not mean that the product is biohumus or contains a substance with such a name, and moreover, the description of the product on its label is reliable, comprehensively informs about the composition and properties of the fertiliser, and the customer has full knowledge of the product, its properties and applications. In turn, the Court of second instance stated that the term “biohumus” is so vague that its use in the same name does not mislead consumers.

A different position was presented by the Supreme Court examining the cassation appeal in the case.

In the opinion of the Supreme Court, marking a product with a specific name suggests that the product is biohumus or at least contains an ingredient with such a name and in an amount that significantly affects the properties of the product.  Therefore, the use of such a term may mislead customers if the fertiliser does not contain biohumus.

Referring to the average consumer, the Supreme Court held that the mere provision of information of information about the composition of the goods on the packaging does not exclude the risk of confusion if other elements on the packaging suggest that the goods have a different composition or properties. Providing the actual composition of the goods may not be able to correct the misleading or ambiguous impression that the other elements on the packaging have on the consumer. Therefore, the assessment of whether a given indication gives rise to a risk of confusion as to its composition requires an analysis of all individual elements that make up the packaging of the product in order to determine whether the average consumer, duly informed and sufficiently observant and reasonable, may be misled as to the presence of a given substance in the composition of the product. In addition, the Supreme Court found that it is debatable whether, after reading the information on the label of the product, the consumer will be able to assess whether it contains biohumus or not, since this term was ambiguous even for experts.

The Court referred to the judgment of 12 December 2009 in case II CSK 387/09 in which it was decided that the right to use the generic name ”biohumus” depends on whether the product contains biohumus and whether this word may be misleading to the composition of the fertiliser.

The judgment of the Court of second instance was repealed and the case remitted for re-examination. Therefore, the issue of the disputed concept of “biohummus” has not been finally resolved and the Supreme Court has sown a seed of uncertainty as to whether misleading consumers does not result from the ambiguity of the term “biohumus” itself or from the defendant’s labelling of goods in a way that suggests that they contain the same substance as fertilisers offered by claimants.

•  judgment of  the Supreme Court of 23 March 2022, II CSKP 621/22