Is the designation "Biomineralwasser" misleading?

The Wettbewerbszentrale (competition authorities) issued a warning to a mineral water manufacturer because it designated and advertised its product as "Biomineralwasser". The Bundesgerichtshof (Federal Court of Justice (BGH)) had to decide whether this advertising actually constitutes misleading conduct under competition law.

A manufacturer of natural mineral water offers and advertises its beverage as "Biomineralwasser". The Wettbewerbszentrale considered this to be misleading. It is of the opinion that the relevant trade would associate quality features with "Biomineralwasser" that are already prescribed by law for natural mineral water and are therefore self-evident.

Court Decision

The Bundesgerichtshof (Federal Court of Justice (BGH)) decided by Judgment of 13.09.2012 – Az. I ZR 230/11 that the use of the designation "Biomineralwasser" is not misleading and therefore does not constitute a violation of competition law.

The relevant trade does not expect that the use of the designation "Bio" would be subject to statutory provisions or state supervision in the case of mineral water. The fact that the legislator has adopted statutory regulations for the use of "Bio" in agricultural products does not change this.

The obligation specified in the Lebensmittel-Kennzeichnungsverordnung to indicate the trade description "natürliches Mineralwasser" does not stand in the way of the additional designation as "Biomineralwasser".

However, the relevant trade does expect that a beverage designated as "Biomineralwasser" has residue and pollutant levels significantly below the maximum values prescribed for natural mineral waters. Whether the mineral water distributed in this case meets these high purity expectations was not a matter of dispute here.

Conclusion

Insofar as there are no statutory regulations that determine the use of the suffix "Bio" or the relevant trade does not assume the existence of such regulations, the suffix "Bio" may be used. However, care should be taken to ensure that the advertised product actually performs better with regard to the relevant pollutants than the average of comparable products. Otherwise, misleading conduct in violation of competition law could be present, which may be subject to costly warnings by competitors.