30. May 16

Competition Law: Deceptive packaging is misleading

Large packaging but little in the way of contents. The OLG Hamburg (Higher Regional Court of Hamburg) has ruled that this kind of misleading packaging sizes may infringe competition law (Az.: 3 U 20715).

GRP Rainer Lawyers and Tax Advisors in Cologne, Berlin, Bonn, Düsseldorf, Frankfurt, Hamburg, Munich, Stuttgart and London conclude: It is something that almost all consumers are likely to have experienced at some point – a large package promising more contents than is in fact the case. According to a recent ruling of the OLG Hamburg of February 25, 2016, this type of deceptive packaging, sometimes referred to as “Mogelpackungen” in Germany, can be misleading, as it gives consumers a false impression regarding the actual contents.

The Wettbewerbszentrale (Centre for Protection against Unfair Competition) had criticized the misleading packaging sizes of a cosmetics manufacturer and sued for an injunction. The OLG Hamburg upheld the Wettbewerbszentrale’s case as the court of second instance, stating that empty space accounted for almost 43 per cent of the volume of the overall packaging in the case of the products that were the subject of the complaint. It held that even if the capacity of the packaging is indicated on the bottom of the packaging, it was not possible to infer the actual size of the pot in question based on this information. The Court went on to say that an illustration of the container in its original scale on the side of the packaging did equally little to clear up any misconceptions on the part of consumers, with many consumers being unlikely to have noticed this illustration in the first place. Moreover, it was said that consumers are not attuned to this level of disparity between the size of the packaging and the actual contents.

Germany’s Gesetz gegen den unlauteren Wettbewerb (UWG) [Unfair Competition Act] and Gesetz gegen Wettbewerbsbeschränkungen (GWB) [Act Against Restraints of Competition] are meant to ensure fair and free competition by regulating the behaviour of market operators among themselves with a view to, for instance, combating deceptive packaging, which not only has the potential to mislead consumers but also harm competitors that do not wish to manipulate consumers by means of such measures.

There is always the potential for breaches of competition law to be committed, even unwittingly. Possible consequences of this include formal written warnings, interim orders, injunctions suits and damages claims. Additionally, it is possible for companies to get caught up in time-consuming and costly legal disputes.

Companies can turn to lawyers who are competent in the field of competition law to fend off or enforce these kinds of claims.

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