Advertising slogan "400 years of brewing tradition" misleading?

The Federal Court of Justice (BGH) in Karlsruhe had to examine in the context of the admissibility test of an appeal whether a brewery may advertise with the slogan "over 400 years of brewing tradition" on beer bottles and beer crates if this advertising statement corresponds to the truth but can be misunderstood by a part of the public.

A beer brewer advertises his brewery on bottle labels and beer crates with the advertising slogan "over 400 years of brewing tradition". A competitor considered this advertising statement to be misleading because it suggested to consumers that the brewery brewed its beer according to a recipe over 400 years old. This indisputably did not correspond to the truth and was therefore contrary to competition law.

As a result, the competitor issued a cease-and-desist letter to the brewery and demanded an injunction. The brewery resisted the cease-and-desist letter received and refused to issue a declaration of undertaking. The lower courts in Stuttgart did assume that a small part of customers could misunderstand the advertising slogan, but rejected the competitor's claim on the grounds that it was disproportionate to prevent the beer brewer from using a true statement.

Decision of the Court

In its decision of 16.08.2012 – Az. I ZR 200/12 – the Federal Court of Justice (BGH) confirmed the judgment of the Higher Regional Court (OLG) Stuttgart and dismissed the competitor's application for review.

The Karlsruhe judges rejected in this case the assumption that even a small part of the public could understand the statement as the competitor claimed. Even if this were the case, however, there would be no need to resort to the principle of proportionality. For in the case of objectively accurate statements that are merely misunderstood by a small part of the public, the conflicting interests must be weighed against each other.

In this case, the interest of the beer brewer in using the accurate reference to his four-hundred-year brewing tradition clearly outweighs the interest of some consumers in being protected from the misunderstanding that a long brewing tradition means at the same time the use of a more or less unchanged recipe.

Conclusion

Even if consumers misunderstand an advertisement, this does not automatically lead to the advertising statement being contrary to competition law. Insofar as the advertising slogan is accurate, the interests of competitors and the public must be weighed against the interests of the advertising company. This weighing fell here correctly – as did the proportionality test of the Higher Regional Court (OLG) Stuttgart – in favour of the beer brewer.