Advertising for condoms with the statements "made in Germany", "German branded goods" or "German branded condoms" is misleading according to the latest case law of the Hamm Higher Regional Court if the essential manufacturing steps for the production of the condoms took place abroad.

The defendant, who is based in Bielefeld Online store operator for erotic products also offered condoms from a company based in Arnstadt. The condoms were advertised in the online store with the statements "made in Germany", "German branded goods" and "German branded condoms".

These condoms were actually purchased by the Arnstadt-based company as blanks from abroad in order to be moistened, packaged and sealed at its factory in Germany. The condoms were then subjected to a quality check to ensure that they were leak-proof and tear-proof.

In a previous legal dispute, the Higher Regional Court of Hamm (judgment of 20.11.2012 - 4 U 95/12) already prohibited the Arnstadt-based company from advertising its condoms produced in this way as "KONDOME - made in Germany". An association from Rotenburg, which represents the interests of companies that manufacture and sell condoms in Germany, has now obtained a corresponding ruling against the online store operator.

Decision of the court

In its judgment of 13.03.2014 (4 U 121/13), the Higher Regional Court of Hamm ordered the online store operator to cease and desist.

Advertising claims regarding the sale of condoms as "made in Germany", "German branded goods" or "German branded condoms" are misleading, as they give the impression that the condoms were manufactured in Germany. The consumer thus expects that all essential manufacturing steps, or at least the relevant manufacturing process in which the product is manufactured, have been carried out in Germany.
their defining characteristics had taken place in Germany. This expectation proved to be wrong in the case of the condoms produced abroad by the Arnstadt-based company. The sealing, packaging and quality control carried out in Germany had nothing to do with the actual manufacturing process. Even with the prior moistening of some of the condoms in Germany, only an alternative to the end product is produced. The fact that the production process meets the requirements of the Medical devices the court ruled that the court had eliminated the Reproach of competition not.

Conclusion

With the current ruling, the Higher Regional Court of Hamm has confirmed its previous case law. Advertising statements such as "made in Germany" are only permissible if the main manufacturing steps actually take place in Germany. Packaging and quality control in Germany are not sufficient for this. The ruling is not yet legally binding, meaning that the BGH (I ZR 89/14) will now also deal with the issue.