Article 5 2.
||National ID||6 U 219/09|
|Common name||Decision type||Court decision in appeal|
|Court||Oberlandesgericht - OLG (Frankfurt am Main)||Plaintiff(s)||not disclosed|
|Court translation||Higher Regional Court (Frankfurt on the Main)||Defendant(s)||spirit producer - name not disclosed|
|Keywords||alcohol, average consumer, material distortion, professional diligence, product origin|
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(1) A spirit which consists of whiskey and cola is not "diluted" in the sense of article 10, item 1 of the Council Regulation No 110/2008 (on the definition, description, presentation, labelling and the protection of geographical indications of spirit drinks) and may therefore be labelled with the term "whiskey".
(2) The infringement of a market behaviour rule in the sense of § 4 Nr. 11 UWG (the German Unfair Competition Act) will only constitute an unfair commercial practice, if at the same time the requirements specified in § 3 II 1 UWG are fulfilled.
The defendant used the labels "Whiskey & Cola" and "Bourbon Whiskey & Cola" for a mixed spirit. The plaintiff requested a cease-and-desist order for this labelling, based on an alleged violation of § 4 No. 11 UWG (the German Unfair Competition Act) in connection with article 10 of Council Regulation 110/2008 on the definition, description, presentation, labelling and the protection of geographical indications of spirit drinks. According to this Regulation, the usage of the label "Whiskey & Cola" is prohibited if the addition of the cola would be a dilution in terms of article 10 of the Regulation.
Does a violation of article 10, item 1 of Council Regulation No 110/2008 (on the definition, description, presentation, labelling and the protection of geographical indications of spirit drinks) constitute an unfair commercial practice?
|URL Decision||Decision full text|
The plaintiff's request was denied.
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