Tenor
The defendant’s appeal against the judgment of the Hamburg Regional Court dated October 25, 2017 is dismissed.
Orders the defendant to pay the costs of the appeal proceedings.
The judgment is provisionally enforceable.
Reasons
A.
1
The applicant is seeking an injunction against the defendant in preliminary injunction proceedings due to various claims of superiority regarding the better bioavailability of a magnesium preparation marketed by the defendant.
2
The applicant distributes magnesium preparations (medicinal products and foodstuffs) nationwide via pharmacies under the brand name “C. Magnesium”, whereby the products contain magnesium compounds with inorganic anions. The defendant distributes magnesium-containing pharmaceuticals and foodstuffs nationwide under the brand name “Magnesium D.”, whereby the products include magnesium compounds with organic anions.
3
The defendant sent an advertising fax to pharmacies (Exhibit A = Exhibit Ast 7), which contained the following statement:
4
“A brand new study (K. et.al 2017) shows that Magnesium D. pure capsules (only organic magnesium citrate) have a significantly better bioavailability than C. magnesium capsules (with magnesium oxide).”
5
An advertising document of the defendant labeled as “information for professionals” (Exhibit B = Exhibit Ast 14) contained the statements:
6
“Organic magnesium citrate is more bioavailable than inorganic magnesium oxide”
7
and
8
“Mg citrate: higher increase in urinary Mg as an expression of better absorption”
9
and the graphic shown below:
10
– Graphic –
11
Both promotional documents refer to the publication by K. et al. (Appendix Ast 6) in BMC Nutrition (2017) with the title “Higher bioavailability of magnesium citrate as compared to magnesium oxide shown by evaluation of urinary excretion and serum levels after single-dose administration in a randomized cross-over study”. For further details of the content of the promotional material, reference is made to the copies submitted as Annexes A and B to the file.
12
Following an unsuccessful warning from the defendant, the applicant applied to the Regional Court for an interim injunction. With the injunction order of 28.3.2017, the defendant was prohibited from using the website in accordance with the application, subject to the statutory remedies,
13
to advertise the product Magnesium D.® pur Kaps with
14
1. the indication
15
“A brand new study (K. et al. 2017) shows that Magnesium D. pure capsules (only organic magnesium citrate) have a significantly better bioavailability than C. magnesium capsules (with magnesium oxide)”
16
as was done in an advertising fax to pharmacies in accordance with the copy attached as Annex A.
17
and/or
18
2. the indication
19
“Organic magnesium citrate is more bioavailable than inorganic magnesium oxide”
20
and/or
21
3. the indication
22
“Mg citrate: higher increase in urinary Mg as an expression of better absorption”
23
and/or
24
4. the graphic
25
– Graphic –
26
all as provided in an information for healthcare professionals in accordance with the copy attached as Annex B.
27
The defendant has lodged an appeal against this interim injunction.
28
In the opposition proceedings, the applicant took the view, as it had previously done in the injunction proceedings, that it was entitled to injunctive relief against the defendant under Sections 3, 3a 5, 5a, 6, 8 UWG in conjunction with Article 7 para. Art. 7 para. 1b, para. 1c LMIV, Art. 8 para. 1, 10 para. 1 HCVO.
29
With the challenged advertising statements and representations, the defendant claims that a new study scientifically proves the advertised superiority of Magnesium D. pur Kaps. The use of the study as evidence for the challenged claims is misleading. The publication by K. et al. could not form the basis for the disputed statements and the graph, as this study was not conducted in a lege artis manner for several reasons. Irrespective of the lack of validity of the referenced study, each disputed statement in the advertising fax and in the information for specialist circles is also misleading because the claims of superiority suggest a nutritional (= clinical) benefit that is actually relevant for the consumer, even from the perspective of specialist circles, which – indisputably – is not actually substantiated by the study.
30
The applicant has applied for,
31
confirm the interim injunction of 28.03.2017.
32
The defendant has applied,
33
annul the interim injunction of 28.03.2017 and reject the application for its issuance.
34
It took the view that the publication by K. et al. could serve as the basis for the disputed statements and the disputed graph, as this study had been carried out in a lege artis manner. In particular, all data that was significant and relevant for the result had been collected, documented, included in the calculation and evaluated. None of the challenged advertising claims or their presentation were misleading, but were supported and verified by the results of the study K. et al. (2017) and verified. The objectives, methodology and quality standards of the study K. et al. (2017) correspond to those of a clinical drug trial according to the “gold standard”.
35
As far as the applicant argues that a nutritional-physiological benefit or a clinical/therapeutic relevance has not been proven, this is not relevant at all, since such a relevance is not even claimed in the challenged advertising.
36
The Regional Court confirmed the interim injunction of 28.3.2017 in its ruling of 25.10.2017. It stated that the challenged advertising claims were misleading because the referenced study by K. et al. did not have the necessary validity. For details, please refer to the reasons for the decision of the Regional Court.
37
The defendant’s appeal is directed against this judgment. She repeats her first instance submission and in particular expands on her submission on the validity of the study by K. et al.
38
The defendant applies,
39
amend the judgment of the Regional Court of Hamburg dated October 25, 2017, set aside the interim injunction of the Regional Court of Hamburg dated March 28, 2017 and dismiss the application for its issuance dated March 14, 2018.
40
The applicant requests,
41
dismiss the appeal.
42
She defends the judgment of the Regional Court by repeating and expanding on her first instance submission.
43
Reference is made to the written submissions and annexes submitted by the parties and to the judgment of the Hamburg Regional Court dated October 25, 2017 for a description of the further facts of the case and the dispute.
B.
44
The admissible appeal is unfounded. The Regional Court rightly confirmed the interim injunction of 28.3.2017 in its judgment of 25.10.2017.
I.
45
The advertising statements challenged by the applications under 1 to 4 are in dispute in their specific form of infringement, i.e. in the way they appear in the advertising documents submitted to the file as Annexes A (application under 1) and B (applications under 2 to 4). Due to the and/or linking of the applications, the advertising statements must be examined in isolation from each other for their admissibility under competition law.
II.
46
The existence of grounds for an injunction is presumed pursuant to Section 12 para. 2 UWG.
III.
47
The applicant is entitled to an injunction against the defendant for all four challenged statements under Sections 3, 5, 8 para. 1, 3 No. 1 UWG.
48
1. the parties are competitors within the meaning of Section 8 para. 3 no. 1 UWG in conjunction with § 2 para. 1 No. 3 UWG, as a competitive relationship exists between them. Both sell magnesium preparations nationwide.
49
2. the advertising statements challenged in applications 1 to 4 are each misleading within the meaning of Section 5 UWG.
50
a. The sole criterion for assessing whether a statement is misleading is the public understanding conclusively presented by the applicant (BGH, GRUR 2018, 431, 433, para. 16 – Tiegelgröße). The court may not base its decision on other misleading aspects (see BGH loc. cit.).
51
The applicant submits that the statements in claims 1 to 4 are essentially based on two distinct marketing understandings: On the one hand, the relevant public would infer from the statements that the claimed superiority with regard to the bioavailability of Magnesium D. pur Kaps is sufficiently scientifically proven by the referenced study. Secondly, the claims of superiority also suggest a nutritional (= clinical) benefit that is actually relevant for the consumer.
52
b. In the opinion of the Senate, the public’s understanding of all of the challenged statements already presented by the applicant in the application dated March 13, 2017 applies with regard to both aspects (scientific evidence/nutritional and physiological benefits) for all of the advertising statements in dispute.
53
The members of the Senate, who can rely on their own expertise and life experience, are themselves able to assess the understanding of the public of the professional circles, in particular pharmacists, who are attentive, reasonably well-informed and reasonably aware of the situation. According to the Senate’s established case law, it is possible for the members of the court to assess the public’s understanding of specialist circles in any case if the state of scientific knowledge has been presented with regard to the relevant facts and – as in this case – there are no indications that the doctor addressed could understand the German language differently than someone who has also completed a scientific degree (Senate, PharmaR 2007, 204).
54
While the marketing understanding aimed at the scientific proof of superiority with regard to bioavailability is rightly not in dispute between the parties, all four statements, in the opinion of the Senate, additionally convey the impression in the context of the respective advertising environment that the advertised superior bioavailability is associated with a nutritional-physiological benefit.
55
aa. This applies first of all to the statement challenged in application no. 1: “A brand new study (K. et al. 2017) proves that Magnesium D. pure capsules (only organic magnesium citrate) have a significantly better bioavailability than C. magnesium capsules (with magnesium oxide)”, which is contained in the advertising fax to pharmacists submitted as Annex A to the file.
56
In this respect, it must be taken into account that a superiority over a specific other product is advertised and emphasized in the advertising in an eye-catching manner. In view of this emphasis on the superiority of the product, the trade will not assume that the advertised superiority of the bioavailability of the defendant’s product could be statistically significant but completely meaningless in terms of nutritional physiology. Rather, it assumes that the superiority aspect in question (“better bioavailability”) is particularly emphasized in advertising because it is also of decisive importance for the benefit of the product when consumed by the consumer. This implication is reinforced by the use of the comparative “better”, which (unlike “higher”) already contains an evaluative component. A considerable proportion of the specialist circles addressed therefore expect, on the basis of the challenged statement, that the superiority of the bioavailability of Magnesium D. over C. is so great that a nutritionally significant advantage is associated with it, which is proven by the study referred to.
57
bb. The same applies to the statement “Organic magnesium citrate is more bioavailable than inorganic magnesium oxide” challenged in application no. 2, as contained in the advertising document referred to as “Information for healthcare professionals” in Annex B.
58
This statement also contains the same claim of superiority regarding the defendant’s preparation compared to the product marketed by the applicant. This connection between the magnesium compounds mentioned and the specific preparations is established in the immediate advertising environment by the fact that the statement is introduced by the statement: “A comparative study¹ proves:”, whereby the superscript “1” is dissolved as a footnote with the reference: “Comparison of Magnesium D. purKaps (Mg citrate; intake of 2 capsules = 300 mg) with C. Magnesium 300 mg (Mg oxide; intake of 1 capsule = 300 mg Mg)” as well as the reference to the publication by K. et al.
59
In this respect too, the trade will understand the claimed superiority in terms of bioavailability as being accompanied by a nutritional-physiological advantage. By using the comparative “better”, this statement also contains an evaluative character that reinforces the above-mentioned understanding of the public.
60
cc. This also applies to the statement “Mg citrate: higher increase in urinary Mg as an expression of better absorption”, which is made in Annex B immediately after the statement challenged in application no. 2. In this respect, too, the targeted trade will infer from the indented introduction (“A comparative study¹ proves:”) and the comparative study referenced in the footnote that the magnesium preparation marketed by the defendant is superior to the applicant’s preparation. Here too, the specialist trade will draw the conclusion from the superiority (“better absorption”) to a nutritional-physiological advantage. Reference can be made to the above statements in this respect.
61
dd. Finally, a corresponding assertion of superiority can also be inferred from the graph challenged in application no. 4, which is also contained in Annex B, when the values of “Mg citrate” and “Mg oxide” with regard to mmol Mg in 24-hour urine are compared in a bar chart. The connection to the parties’ preparations is established in the same way as already explained with regard to applications 2 and 3. In this respect, too, the targeted trade will assume that the graphically highlighted resorption advantage is associated with a nutritional-physiological benefit.
62
c. The targeted trade is misled because there is indisputably no evidence of a nutritional advantage of the defendant’s product based on a higher bioavailability. In particular, the study by K. et al. referenced in the advertisement. In this way, the challenged claims of superiority create a misconception among the targeted specialist circles.
63
Whether a further misconception is caused by the lack of sufficient scientific validity of the cited study by K. et al. as assumed by the Regional Court, does not need to be decided. It can also be left open whether the graphical representation, which is the subject of application no. 4, is misleading simply because, due to the scaling (from 6.4 mmol to 7.2 mmol), the depicted resorption superiority of 0.5 mmol leads to a bar that is more than two and a half times longer for the defendant’s product.
64
3. the risk of repetition established by the above-mentioned acts of infringement continues to exist, as it has not been eliminated by the defendant either by a final declaration or by a declaration to cease and desist with a penalty clause.
IV.
65
The decision on costs follows from section 97 para. 1 ZPO, the decision on provisional enforceability follows from Sections 708 No. 10, 711, 713 ZPO.