Condoms "Made in Germany"?

Is a manufacturer permitted to advertise its product with the quality seal "Made in Germany" if only part of the manufacturing steps are carried out in Germany, or does this constitute unfair and misleading commercial practice? The Federal Court of Justice (BGH) had to decide this dispute between two condom manufacturers in the final instance.

A German manufacturer of latex condoms issued a cease-and-desist letter to his German competitor because the latter was advertising his condoms with the statement "Made in Germany". He was of the opinion that this was misleading and therefore anti-competitive, since the competitor had his products manufactured largely abroad.

The competitor, for his part, considered the advertising to be permissible, since he further processed the blanks sourced abroad in part, for example by moistening them, and had the condoms packaged and sealed in Germany. In addition, quality control first took place in Germany.

The first two instances prohibited the competitor from advertising with "Made in Germany". A revision was not admitted by the Higher Regional Court (OLG) Hamm, so the condom manufacturer filed a petition for non-admission review with the Federal Court of Justice (BGH).

Court Decision

By means ofBeschluss vom 27.11.2014 – Az. I – ZR 16/14the Federal Court of Justice (BGH) rejected the petition for non-admission review and thereby permanently prohibited the condom manufacturer from advertising with the quality seal "Made in Germany".

With regard to industrial products, consumers generally understand a designation of origin to refer to the location of manufacture of the goods where the industrial product acquires the quality and characteristic properties that are decisive from the consumer's point of view.

On the basis of these criteria, the Higher Regional Court (OLG) Hamm had determined that, from the consumer's perspective, the essential properties of a condom are tightness and tensile strength. However, in this case, these characteristics were formed during the manufacture of the blanks abroad and not in Germany. The batch testing at the respondent's German facility did not serve to create these properties, but rather the

subsequent inspection for the presence of these quality characteristics.

The advertising statement "Made in Germany" therefore led to unfair and misleading commercial practice in this case, which was to be ceased.

Conclusion

Advertising with the quality feature "Made in Germany" is permissible under established case law only if all material manufacturing steps of the product are carried out in Germany. If this is not the case, the advertising is contrary to competition law and may result in corresponding cease-and-desist notices from competitors.