Background
The subject of the dispute was a men’s washing gel from the defendant L’Oréal Paris, which it advertised on its website in a plastic tube with a capacity of 100 ml. In the online advertising, the tube is shown standing on the cap. The lower part of the cap is transparent and reveals the orange-coloured contents. The area above it is not transparent, but coloured silver. The tube is only filled with wash gel in the transparent area up to the beginning of the upper, non-transparent area.
A consumer protection association sued for an injunction because the advertising gave the impression that the tube was almost completely filled with washing gel.
Decision
The Regional Court and the Higher Regional Court of Düsseldorf dismissed the claim. The OLG Düsseldorf did not doubt that such “deceptive packaging” would be relevant in stationary retail. This is based on the assumption that the public has different expectations of product packaging: in principle, the consumer assumes that the packaging is in reasonable proportion to the quantity of the product it contains. The contested product packaging does not reliably prevent the consumer interested in purchasing the product from recognising the actual filling quantity, as he perceives the transition from the transparent packaging to the silver printing merely as a design feature, but not as an indication of the filling level. In contrast to online sales, a consumer will pick up the product in a shop and take a look at the back. However, it is unlikely that an averagely informed consumer who is interested in the product will look at it in detail and check its ingredients. The consumer is more likely to take a cursory look at the product and concentrate, if at all, on the key statements printed on it, rather than recognising the exact amount of product by looking at the washing gel moving around in the packaging.
In the case of “making available on the market” by means of online sales, the noticeable impairment of interests required under Sections 8 (1), (3) No. 3, 3a UWG is not given in the opinion of the Düsseldorf Higher Regional Court: Consumers only become aware of the specific size of the product packaging upon delivery and therefore after the contract has been concluded. Although they can deduce a certain appearance of the packaging from the product image, the filling quantity as such can only be deduced from the filling quantity information (here indisputably 100 ml) in the absence of knowledge of the actual size of the product packaging. The consumer may therefore infer a certain size of the packaging from the filling quantity, but not a certain filling quantity from the packaging.
The BGH rejected this differentiation and affirmed a claim for injunctive relief pursuant to Section 8 (1) sentence 1 and (3) no. 3, Section 3 (1) and (2), Section 5 (1) and (2) no. 1 UWG. Contrary to Section 43 (2) MessEG, the design and filling of the product pretends a larger filling quantity than is actually contained in the tube. The decisive protective purpose of Section 43 (2) MessEG is to protect the public from misconceptions about the relative filling quantity of a pre-packaged product. This protective purpose is always affected, irrespective of the distribution channel, if the design and filling of a pre-packaged product misleads the public in a relevant way about its relative filling quantity. This also represents a noticeable impairment of interests, as Section 43 (2) MessEG is intended to protect the consumer from misleading information about the filling quantity of a package. Whether the other requirements of Section 43 (2) MessEG are met was not relevant, as the provision is not applicable due to the fully harmonising effect of Directive 2005/29/EC. The BGH therefore assessed the misleading nature of the filling quantity of packaging solely in accordance with Section 5 UWG. The contested internet advertising for the washing gel violates Section 5 (1) and (2) No. 1 UWG. It is misleading in terms of competition if the packaging is not proportionate to the filling quantity, as the tube of the washing gel is only two thirds full.
Conclusion
The decision highlights a further offence that extends the already overlong list of reasons for issuing warnings in online retail. Online retailers can now be sued for injunctive relief for cheating packaging, even though they had no knowledge of the filling level of the packaging. If retailers do not want to be stuck with the warning costs, they have no choice but to take recourse against the product manufacturers who committed the actual offence.