TENOR
1. the Senate intends to dismiss the plaintiff’s appeal against the judgment of the 1st Chamber for Commercial Matters of the Regional Court of Stade delivered on March 28, 2019 by unanimous decision pursuant to Section 522 para. 2 ZPO.
2. the plaintiff shall be given the opportunity to comment and, if necessary, withdraw his appeal on grounds of costs within two weeks of receipt of this decision.
3. the amount in dispute for the appeal proceedings is set at € 25,000.00.
REASONS
I.
1
The parties are disputing claims for injunctive relief due to the designation of vegan foods.
2
The plaintiff is a registered association whose tasks include combating unfair competition. The defendant sells vegan foods made from purely plant-based products (cashew nuts), which it describes and advertises on its website and on the product packaging as “vegan cheese alternative” and “matured cheese alternative”. For details of the advertising at issue, reference is made to Annexes K 1 to K 3 (Plaintiff’s Annexes).
3
In a letter dated April 30, 2018, the plaintiff sent the defendant a warning for the use of these terms, among other things, and requested that it submit a cease-and-desist declaration with a penalty clause by May 11, 2018. While the defendant declared a partial cease-and-desist declaration with regard to further objectionable advertising with the word “Ch.”, which the plaintiff accepted, it refused to issue a cease-and-desist declaration with regard to the term “cheese alternative”.
4
In this respect, the plaintiff, with reference to the case law of the ECJ (judgment of June 14, 2017 – C-422/16, “Tofu-Town.com”), requested that the defendant be ordered to refrain from using its “H. Ch.” brand in the course of trade, subject to a fine of up to €250,000.00 to be imposed for each case of infringement, or imprisonment of up to six months.000.00, alternatively imprisonment, or imprisonment of up to six months, to be enforced in each case on the managing director of the defendant, to refrain from advertising its “H. Ch.” products in the course of trade with the statements “vegan cheese alternative” and/or “matured cheese alternative”, if this is done as on the homepage (Annexes K 1 and K 2) or on the product packaging (Annex K 3) of the defendant.
5
The Regional Court dismissed the action on the grounds that the plaintiff was not entitled to injunctive relief against the defendant under Sections 8 para. 1, para. 3 No. 2 in conjunction with. §§ Sections 1, 3, 3a, 5 para. 1 UWG i.V.m. Art. 7 Regulation (EU) No. 1189/2011 in conjunction with Annex VII Part III Regulation (EU) 1308/2013, as the designation “cheese alternative” is permissible. Although a food made from cashew nuts should not be called “cheese”, the term “cheese alternative” merely places the product in a relationship to the dairy product cheese without designating it as such. The word combination “cheese alternative” does not advertise the product as cheese and thus as an animal milk product, but as an alternative to it.
6
The plaintiff is contesting this with his appeal, in which he continues to pursue his application for injunctive relief and repeats and expands on his arguments at first instance. The plaintiff continues to argue that the designation of the purely plant-based products as a “cheese alternative” is unlawful under Art. 78 para. 1 c, para. 2 i.V.m. Annex VII Part III No. 2, VIII No. 1 Regulation 1308/2013, because the terms “milk” and “cheese” are reserved exclusively for products of normal udder secretion obtained by single or multiple milking without any addition or removal. The fact that the defendant connected the terms “cheese” and “alternative” by means of a hyphen does not change this. The decision of the ECJ of June 14, 2017 clarified in principle that neither the designation “milk” nor the designation for dairy products (i.e. “cheese”) may be used in the marketing or advertising of a plant-based product, even if these designations are supplemented by clarifying or descriptive additions that indicate the plant-based origin of the product in question. The attribute “alternative” is nothing other than such a clarifying or descriptive addition, which is in no way suitable to lead the defendant’s advertising in question here out of the prohibited area of the standard. “Cheese alternative” is to be equated with “like cheese” because the advertising contains the statement that the defendant’s product can be used instead of (= like) cheese. The intention of the European legislator, according to which the protection of designations under milk law should extend as far as possible, should also be taken into account in all of this.
7
For further details of the plaintiff’s arguments, reference is made to the statement of grounds of appeal dated July 15, 2019 (p. 90 et seq.).
8
The plaintiff requests,
9
I. order the defendant, amending the judgment under appeal, to refrain from promoting its “H. Ch.” products in the course of trade with the statements
10
1. “vegan cheese alternative” and/or
11
2. “Matured cheese alternative”
12
to advertise if – as shown below – this
13
(to 1.):
14
(until 15.08.2018)
15
…
16
(as of 05.09.2018)
17
…
18
(to 2.):
19
…
20
as on its homepage www.h…-ch….com (Annexes K 1 and K 2)
or on the product packaging (Appendix K 3); and
21
II. impose on the defendant for each case of infringement
of a fine of up to € 250,000, alternatively imprisonment for up to six months, in the event of a repeat offense up to two years, to be enforced on its managing director.
22
The defendant has not yet announced an application in the appeal proceedings.
II.
23
The case is neither of fundamental importance nor does the further development of the law or the safeguarding of uniform case law require a decision by the court of appeal in the form of a judgment. Furthermore, an oral hearing is not required. Finally, based on the current state of deliberations, the appeal clearly has no prospect of success.
24
The Regional Court rightly dismissed the action. The plaintiff is not entitled to injunctive relief for the designation of the defendant’s product as a “vegan cheese alternative” and/or “matured cheese alternative” under Sec. 8 para. 1, para. 3 No. 2 in conjunction with. §§ Sections 1, 3, 3a, 5 para. 1 UWG. The use of the term “cheese alternative” does not constitute an unfair commercial act within the meaning of Sections 3 para. 1, 3a UWG (see below 1.) nor within the meaning of §§ 3 para. 1, 5 para. 1 UWG (see below 2.).
25
1. according to § 3a UWG, anyone who violates a statutory provision which is also intended to regulate market behavior in the interests of market participants is acting unfairly if the violation is likely to significantly impair the interests of consumers, other market participants or competitors.
26
According to the correct opinion of the Regional Court, these conditions are not met here, since the designation as a “cheese alternative” neither violates Art. 78 para. 1 lit. c, para. 2 i.V.m. Annex VII Part III No. 2 lit. a, viii) of Regulation (EU) 1308/2013 – see also a) – nor against Art. 7 para. 1 in conjunction with Art. 17 para. 1 Regulation 1169/2011 (Food Information Regulation; hereinafter: FIR) – in this regard b) -.
27
a) a) Pursuant to Art. 78 para. 1 lit. c, para. 2 i.V.m. Annex VII Part III No. 2 of Regulation (EU) 1308/2013, “milk products” are products obtained exclusively from milk – i.e. the product of normal udder secretion obtained by single or repeated milking, without any addition or withdrawal – whereby substances necessary for the manufacture may be added, provided that these are not used to replace one of the milk components in whole or in part. In particular, the designation “cheese” according to lit. a, viii) is reserved exclusively for milk products.
28
According to the case law of the ECJ (judgment of June 14, 2017, case reference: C-422/16), these provisions must be interpreted to the effect that the designation “milk” and the designations reserved exclusively for milk products under this Regulation may not be used in marketing or advertising to designate a purely vegetable product, even if this designation is supplemented by clarifying or descriptive additions indicating the vegetable origin of the product in question. Foodstuffs which – like the defendant’s product here – are made from purely plant-based products may therefore not be described as “cheese”, as they are neither made from “milk” nor from “milk products”.
29
However, the Senate shares the opinion of the Regional Court that the defendant’s product is not referred to as “cheese” by the term “cheese alternative”. Rather, the product is merely placed in a relationship to the dairy product cheese and the addition “alternative” sufficiently expresses that it is not cheese, but something else – namely an alternative to cheese.
30
The term “alternative” is neither a clarifying nor a descriptive addition that indicates the plant-based origin of the product in question, as would be the case with the – impermissible – terms “tofu butter”, “plant-based cheese”, “veggie cheese” or “cashew cheese”, for example. In the opinion of the Senate, such word combinations are also likely to mislead, as they suggest to the consumer that it is a product that in any case also consists of animal milk products. However, the situation is different with the term “cheese alternative”, which does not pose a comparable risk of misleading the average consumer who is reasonably well-informed and reasonably observant and circumspect. This is because the average consumer does not understand an “alternative” to be a clarifying or descriptive designation of the term “cheese”, but rather a clarification to the effect that the product is not cheese, but something else.
31
In this respect, the term “cheese alternative” also differs from other comparative descriptions that have already been the subject of lower court decisions (see Hamburg Regional Court, judgment of July 13, 2018 – 315 O 425/17 – “to be used like crème fraîche”; Heilbronn Regional Court, judgment of December 20, 2018 – 21 O 34/18 KfH – “like butter”; Constance Regional Court, judgment of June 22, 2017 – 7 O 25/16 KfH – “like cream cheese”). While the addition “like” or “to be used like” does not eliminate the risk of misleading, as it is not suitable for reliably informing the consumer that it is not a dairy product, the term “cheese alternative” does not emphasize any similarity to a dairy product, but expressly points out that it is not cheese. In contrast to the case decided by the Regional Court of Constance, the defendant’s advertising both on its website and on the product packaging does not contain any visual emphasis of the word “cheese” that could possibly justify a different decision.
32
b) The designation “cheese alternative” also does not infringe Art. 7 para. 1 lit. a i.V.m. Art. 9 para. 1 lit. a i.V.m. Art. 17 para. 1 LMIV.
33
According to Art. 7 para. 1 FIR, information on foods must not be misleading, in particular (in accordance with lit. a) with regard to the characteristics of the food, in particular the nature, identity, properties, composition, quantity, durability, country or place of origin and method of manufacture or production. The mandatory indication of the name of the food within the meaning of Art. 9 para. 1 lit. a FIR is specified in Art. 17 para. 1 FIR specifies that a food must be described by its legally prescribed name. In the absence of such a name, the food shall be described by its customary name or, if no customary name exists or is not used, by a descriptive name. Art. 2 para. 2 lit. p FIR defines the “descriptive name” as a name which describes the food and, where necessary, its use, and which is sufficiently precise to enable consumers to identify the true nature of the food and to distinguish it from products with which it could be confused.
34
The defendant did not violate these legal requirements by labeling the cashew nut product in dispute as a “cheese alternative”. First of all, the Regional Court correctly found that the defendant’s product lacked both a legally prescribed and a customary designation. Under the product name “H… W…” made from cashews now used by the defendant, the average consumer cannot imagine a specific food product. Therefore, the product must be given a descriptive name, as the defendant has permissibly done here. Unlike the names proposed by the plaintiff as “Cashew Thaler” or “Happy White (cashew ash matured, Greek herbs, chakalaka etc.)”, the description as a “cheese alternative” makes it clear to consumers that the product is not a dairy product made from cheese, but a product made from cashews that can be used as an alternative to cheese, for example as a topping on bread or eaten without further preparation. This does not mislead the consumer for the reasons stated under a).
35
2 Finally, advertising with the term “cheese alternative” does not constitute an unfair commercial act within the meaning of Section 5 para. 1 UWG.
36
According to this provision, anyone who carries out a misleading commercial act that is likely to cause the consumer or other market participants to make a commercial decision that they would not otherwise have made is acting unfairly. The regulatory content of Section 5 para. 1 UWG is comparable to that of Art. 7 FIR; both provisions are applicable alongside each other, whereby the special statutory objectives of the specific food law provisions influence the interpretation of competition law (see Grube in: Voit/Grube, FIR, 2nd edition 2016, Art. 7 para. 29 with further references). Therefore, in the context of the examination of an unfair commercial act pursuant to Section 5 para. 1 UWG for the reasons stated above, the product name “cheese alternative” is not suitable for misleading consumers.
III.
37
As the plaintiff’s appeal is likely to be unsuccessful, he should consider withdrawing his appeal for reasons of costs, which would otherwise have to be dismissed with costs pursuant to Section 522 para. 2 ZPO would have to be dismissed with costs.