Is advertising condoms as 'Made in Germany' anti-competitive?

The Higher Regional Court (OLG) Hamm had to decide in second instance a dispute between two condom manufacturers concerning the misleading nature of the advertising claim 'Made in Germany'.

A German manufacturer of latex condoms sent a cease-and-desist letter to a German competitor regarding the latter's advertising claim that its condoms were 'Made in Germany'. He was of the opinion that this was impermissible because his competitor, like himself, has most of its products manufactured abroad. The competitor, on the other hand, considered the advertising to be permissible because it reworked the semi-finished products sourced from abroad to some extent, for example by moisturizing them, and the condoms were packaged and sealed in Germany. Furthermore, quality control took place only in Germany.

Court's decision

In a decision of 20.11.2012 – Az. I – 4 U 95/12 (Press release) the Higher Regional Court (OLG) Hamm confirmed the presence of misleading advertising.

The advertising claim 'Made in Germany' gave rise to the expectation of consumers that all essential manufacturing steps had taken place in Germany. However, this was not the case here. Moisturizing, sealing, packaging and quality control have nothing to do with the manufacture of the actual end product, so that the consumer is deceived by the advertising claim 'Made in Germany' as to the origin of the condom. The condom manufacturer therefore had to cease this misleading advertising claim.

Conclusion

When advertising the origin of products, according to established case law, all essential manufacturing steps must have taken place at the place of origin. If this is not the case, advertising the origin is misleading and therefore also anti-competitive and can result in corresponding cease-and-desist letters from competitors.