Nivea – Deceptive packaging prohibited

Beiersdorf is no longer permitted to market a Nivea facial cream in a deceptive package size. The Higher Regional Court (OLG) Hamburg has followed the view of the Wettbewerbszentrale and confirmed that the package size suggests a larger quantity of content than is actually contained.

Beiersdorf distributed the facial cream NIVEA TEINT OPTIMAL Anti-Age Tagespflege Soja in folding boxes approximately 7 cm in height. The jar contained therein, which was positioned on a type of "cardboard pedestal", had a height of approximately 4 cm together with its lid. The quantity of cream was indicated on the underside of the packaging. On one side of the packaging was an illustration of the jar with the caption:

"The product image corresponds to the original size"

The Wettbewerbszentrale was of the opinion that this packaging suggested a larger quantity of content than actually contained and objected to the product packaging presented by Beiersdorf AG as misleading. Beiersdorf refused to issue a declaration of discontinuance and countered that the size of the outer packaging served as a differentiating feature between differently positioned products of a brand.

The court of first instance (press release of the Wettbewerbszentrale of 05.02.2015) considered the contested Nivea packaging to be in compliance with competition law. The consumer was familiar with the usual quantity of 50 ml. There was no reason to assume that the consumer would draw conclusions from the external outer packaging to the size of the jar contained within. Following the appeal by the Wettbewerbszentrale, the Higher Regional Court (OLG) Hamburg has now overturned the first instance judgment.

Court decision confirms misleading nature of Nivea packaging

With itsjudgment of 25.02.2016 – 3 U 20/15(press release of the Wettbewerbszentrale of 22.03.2016), the Higher Regional Court (OLG) Hamburg has confirmed the view of the Wettbewerbszentrale and prohibited Beiersdorf from putting the Nivea cream on the market in misleading package size. The consumer is deceived as to the contents of the product contained in the packaging, since the hollow space accounts for almost 43% of the volume of the overall packaging and the consumer would not ordinarily expect such a hollow space.

Beiersdorf's argument that the quantity of content was indicated on the underside of the packaging did not convince the court. The quantity of content alone does not allow conclusions to be drawn about the size of the jar. The illustration of the jar affixed to the side of the packaging with the corresponding caption also does not dispel the false impression of the consumer regarding the contents of the packaging. These details will ordinarily not catch the eye of a considerable proportion of consumers, since they shop "by sight from the shelf". In any case, the consumer does not expect gross discrepancies between package size and contents.

Conclusion

A product packaging is misleading if its size suggests a larger quantity of content than is actually contained. In the court's view, it is irrelevant whether the quantity of content is indicated on the packaging, since this information is not heeded by a large proportion of consumers. These are always individual case decisions, whereby the courts generally assume an average informed and attentive consumer. Should the principles of this decision be applied in comparable cases in future, some cosmetics manufacturers should consider alternative product packaging.