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BGH comments on deceptive packaging

Unfair competition: Face creams may continue to be sold in outer packaging that is larger than its contents. There is no deceptive packaging.

Who hasn’t experienced it? Face creams and many other skincare products are all too often sold in packaging and tins that are many times larger than their contents: deceptive packaging. In its ruling of October 11, 2017 (case reference: I ZB 96/16), the Federal Court of Justice ruled that this deceptive packaging is not objectionable under competition law. There was no misleading of the consumer.

Cheat pack: 7 cm high packaging for 4 cm high jar

The Zentrale zur Bekämpfung unlauteren Wettbewerbs e.V. took legal action against two Nivea face creams. Their packaging was each 7 cm high. However, the cardboard packaging had a “pedestal” at a height of 3 cm on which the 4 cm high cream jar containing 50 ml stood. The filling quantity was correctly indicated on the packaging. There was also an image of the product on the outer packaging of the jar with the note “This product image corresponds to the original size”.

Zentrale zur Bekämpfung unlauteren Wettbewerbs e.V.: “Cheat packs violate competition law

The Center for Combating Unfair Competition considered the packaging to be a violation of the prohibition of misleading advertising under Section 5 para. 1 UWG and issued a warning. Nivea was deceiving the consumer into believing that the product had a larger filling quantity, as it was using pre-packaged packaging that suggested a much larger filling quantity on the outside. After all, the customer in the cosmetics sector is used to being offered packaging that roughly corresponds to the size of the jar.

BGH: Nivea creams are not deceptive packaging

However, the BGH did not follow this view and rejected the claim for injunctive relief. It was not apparent that the consumer would automatically assume that the outer packaging size also represented the actual product size. This is particularly due to the fact that there are no uniform packaging sizes available on the market for this product group.

Customers pay more attention to the filling quantity of cosmetic products than to the packaging

Insofar as the customer knows that the products are always available in different sizes, the customer explicitly pays attention to the filling quantity when purchasing and does not assume a standard volume. In particular, there is therefore a lack of corresponding expectations on the part of the prospective buyer.

In addition, the BGH assumes that the consumer picks up the product at the time of purchase in order to find out about the composition of the product. At this point at the latest, the reference to the original size of the jar will catch the consumer’s eye and misleading is ruled out.

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