Advertising with "cheese alternative" permissible!

Case law has already established in the past that only products of animal origin may be designated as "cheese". The Regional Court (LG) Stade now had to decide whether the slogan "cheese alternative" also constitutes a violation of competition law.

A manufacturer of vegan food products from cashew kernels advertised its products both on the homepage and on the product packaging, inter alia, as a "vegan cheese alternative".

A competition association saw a violation of competition law in this, issued a cease-and-desist letter to the manufacturer and demanded the submission of a binding undertaking to cease infringement.

The association argued that, in its view, consumers would be misled by the designation "cheese alternative". The alleged misleading consisted in the fact that the word component "cheese" in "cheese alternative" was being advertised. This created the impression in consumers that it was a dairy product. The dispute ultimately ended up before the Regional Court (LG) Stade.

Regional Court (LG) Stade: "cheese alternative" is not misleading

The Regional Court (LG) Stade stated in its judgment (Urt. v. 28.03.2019, Az. 8 O 64/18) that the designation "cheese alternative" is permissible for products that are not derived from milk.

In support of this, the court held that the use of the phrase "cheese alternative" made clear that the advertised product was not cheese or a dairy product. The term "alternative" precisely designated something other than that to which the alternative was related. In the court's view, this is also understood in this way by the relevant circles of commerce. Rather, the consumer is informed that the product is not cheese, but that he can use this product instead of cheese if he wishes to dispense with the corresponding dairy product.

In the past, the Court of Justice of the European Union (EuGH) decided that only products of animal origin may be designated as "milk, cheese, butter or yoghurt". In this context, there was also a judgment of the Regional Court (LG) Konstanz which clarified that the impression must not be created for non-dairy products that the product is a dairy product.

By contrast, according to the Regional Court (LG) Stade, the descriptive presentation as a "cheese alternative" is aimed precisely at differentiating from the corresponding dairy product, so that there is no violation of competition law through misleading advertising.

Conclusion

If products are advertised with the word components "milk, cheese, butter or yoghurt", these must actually be of animal origin. An exception to this principle is possible within narrow limits, but requires qualified legal advice to avoid costly cease-and-desist letters.