"Made in Germany" condoms from abroad?

Advertising condoms with the statements "made in germany", "deutsche Markenware" or "deutsche Markenkondome" is, according to current case law of the Higher Regional Court (OLG) Hamm, misleading if the essential manufacturing steps for the production of the condoms were carried out abroad.

The defendant, an online shop operator based in Bielefeld,online shop operator for erotic articles, has also offered condoms from a company based in Arnstadt. The condoms were advertised in the context of the online shop with the statements "made in Germany", "deutsche Markenware" and "deutsche Markenkondome".

In fact, these condoms were obtained by the Arnstadt company as blanks from abroad in order to moisten them, package them and seal them, if necessary, in their plant located in Germany. Subsequently, the condoms underwent quality control with regard to tightness and tensile strength.

In a previous legal dispute, the Higher Regional Court (OLG) Hamm (judgment of 20.11.2012 – 4 U 95/12) already prohibited the Arnstadt company from advertising its condoms produced in this manner with "KONDOME – made in Germany". An association from Rotenburg, which represents the interests of companies that manufacture and distribute condoms in Germany, has now obtained a corresponding decision against the online shop operator.

Court's decision

In its judgment of 13.03.2014 (4 U 121/13), the Higher Regional Court (OLG) Hamm ordered the online shop operator to cease and desist.

Advertising statements on the sale of condoms as "made in Germany", "German brand awareness" or "German brand condoms" are misleading in that they create the impression that the condoms were manufactured in Germany. Thus the consumer expects that all essential manufacturing steps, at least however the decisive manufacturing process in which the goods
obtain their defining properties, took place in Germany. This expectation proves to be false in the case of the condoms pre-manufactured abroad by the Arnstadt company. For the sealing and packaging carried out in Germany, as well as quality control, no longer have anything to do with the actual manufacturing process. Even with the prior moistening of a portion of the condoms in Germany, merely an alternative to the final product is manufactured. The fact that the production process meets the requirements of the MarkenG (German Trade Mark Act) does not eliminate the competition allegation in question.Medizinprodukte does not eliminate the question ofWettbewerbsvorwurf .

Conclusion

With the current judgment, the Higher Regional Court (OLG) Hamm has confirmed its previous case law.Advertising statements such as "made in Germany" are only permissible if the essential manufacturing steps are actually carried out in Germany. Packaging and quality control in Germany are in no way sufficient for this purpose. The judgment is not yet final, so the Federal Court of Justice (BGH) (I ZR 89/14) will now also be required to address the question.