The defendant company offers devices for various cosmetic treatments. It sells directly to doctors, pharmacists and beauticians. The company’s website also advertises its hair removers. These work with the so-called Intense Pulsed Light technology, or IPL for short. One aspect in particular was emphasized in the advertising: The treatment is “painless”. It goes on to say: “The […] skin tolerance of the treatment has been tested and proven several times in international clinical studies. Therefore, only offer your customers treatments that meet the highest safety requirements.”
An association for combating unfair competition, on the other hand, was convinced that treatment with the defendant’s IPL devices was not painless. Its view has now been confirmed by the Münster Regional Court (judgment of August 2, 2021, case no.: 25 O 56/17).
Advertising of IPL hair removal as “painless” “objectively untrue” according to court
The court had the devices and their technology examined in detail by an expert. The study situation was also taken into account. Among other things, the study cited by the defendant company in support of its position was part of the expert opinion. From all of this, however, it was clear that IPL treatment with the devices in dispute was not possible without pain. Most of the study participants had developed sensory disturbances. Approx. 20 % would have developed small burn blisters, which would have healed without scarring within a week. The pain was classified by the study participants as being in the medium range.
Advertising as “pain-free” violates competition law several times over
The information provided by the expert also convinced the court: the court considers the claim that use is “painless” to be objectively untrue. For this reason, such advertising also violates competition law. The IPL hair removers are products treated as medical devices in accordance with the Medical Devices Regulation (EC). of the Medical Devices Regulation (Regulation (EC) 2017/745). According to Art. 7, such products may not be attributed a property that they do not actually possess. However, Section 5 of the German Unfair Competition Act (UWG) also prohibits misleading statements, e.g. with untrue information. For both reasons, there is an infringement here.
In addition to the dispute about IPL hair removers, a decision was also made about the effect of an ultrasound device from the defendant. Here too, the court deemed various advertising claims to be unlawful.
