Breach of competition law by a physician in connection with unlawful advertising by a third party

Manufacturers of foodstuffs or other products frequently use the faces of prominent persons or experts in their advertising in order to increase the popularity of the product through public endorsement by the advertising media. The Higher Regional Court (OLG) Celle had to decide whether a physician whose statement, photograph and name are published in connection with the advertising is liable for the unlawfulness of the advertising under competition law.

A company advertised its diet products and thereby violated the Health Claims Regulation. The advertising also used the name, a portrait photograph and a statement of a specialist physician. Both the advertising company and the physician were held liable for the unlawful advertising.

The physician refused to accept any responsibility. He contended that he had no possibility of influencing the company to cease the contested advertising using his person. The OLG Celle took a different view.

The court's decision

By order dated 02.05.2016 – Az. 13 U 155/15, the OLG Celle affirmed the liability of the medical practitioner.

In the court's view, it was already incomprehensible why the physician should not have claims for injunctive relief against the advertising company. Sufficient means of defence had been available to the medical practitioner.

The physician would not be co-liable if he had no possibility to take action to end the infringement in a reasonable manner. However, this was not the case.

Conclusion

Accordingly, the specialist physician should have taken action against the use of his statements in the context of the advertising in order to avoid personal liability.