Global menu

Our global pages

Close

"Unrivalled effect" and "No one is faster": Düsseldorf Higher Regional Court decided on advertising statements claiming a leading position for medicinal products

  • Germany

    23-06-2017

    Précis

    Recently, two decisions of Düsseldorf Higher Regional Court (Oberlandesgericht, OLG) have been published on the question as to when an advertising statement constitutes an – in fact non-existing – allegation of a leading position (Düsseldorf OLG, decision of 10 November 2016, file ref.: I-20 U55/16 and decision of 14 February 2017, file ref.: I-20 U 123/16). The court did not consider either statement a claim of a leading position, which might seem surprising at first glance.

    Background

    In German unfair competition law, which is in general regulated under the German Act Against Unfair Competition (Gesetz gegen den unlauteren Wettbewerb, UWG) and in particular, with regard to medicinal products, under the German Act on the Advertising of Medicinal Products (Heilmittelwerbegesetz, HWG) the principle of the prohibition to mislead consumers applies. An advertising statement which contains objective information about a product thus must be true in order to be admissible. Otherwise, the advertising company is committing an anti-competitive act and may be faced with claims for injunction.

    So-called claims of a leading position may also be part of the category of advertising statements with objective content, i.e. whenever the claimed leading position refers to objectively verifiable characteristics. The statement "The best pizza in the world", for example, is a neutral statement under competition law since it is understood by the recipients as a pure advertising statement without any objective content. If, however, the effectiveness of medicinal products is concerned, such a claim will be understood differently. The two statements "Unrivalled effect" and "No one is faster" for medicinal products were the subject-matter of the decisions of Düsseldorf Higher Regional Court. Recipients do not understand these statements as pure advertising statements, but draw conclusions on the advertised products.

    However, the central question to be clarified by Düsseldorf Higher Regional Court was whether the recipients understand the statements to the effect that the advertised medicinal product takes a leading position, i.e. that it alone is the best product in this category (which in fact was not the case in both matters) or that the product is merely part of a leading group.

    The decision of Düsseldorf Higher Regional Court

    Düsseldorf Higher Regional Court did not regard either statement as a claim of a leading position. The recipients would rather understand the statements to the effect that the advertised medicinal product was not exceeded by another medicinal product in terms of its effectiveness. Thus, it was irrelevant that other medicinal products – which have the same effect – existed. The decision of Düsseldorf Higher Regional Court is hence strictly based on the wording. "Unrivalled" thus means that no other medicinal product has a better effect, but that there may well be alternative medicinal products which have the same effect. The same applied to the statement "No one is faster". According to Düsseldorf Higher Regional Court, this statement does not mean that there is no medicinal product with an equally quickly effect. With this assessment, Düsseldorf Higher Regional Court presupposes that the recipient is relatively attentive. Upon superficial reading, a lot of recipients might certainly understand the advertising statements as a claim of a leading position, so that the decisions of Düsseldorf Higher Regional Court are at least noteworthy.

    What next?

    If the decisions of Düsseldorf Higher Regional Court are taken as a basis, the manufacturers of medicinal products will have more freedom with respect to the phrasing of their advertising statements, as long as the wording is chosen precisely. Düsseldorf Higher Regional Court thus contrasts with the previous case-law of other higher regional courts. It remains to be seen whether its line of argumentation will be strengthened in the future. Until then, advertising companies should continue to exercise caution when phrasing their advertising statements.

    This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full terms and conditions on our website.

    < Go back