Stronger than water? – The Higher Regional Court of Koblenz rules on advertising with the designation ‘IMMUN WATER’
Background:
The Higher Regional Court of Koblenz has prohibited Eckes-Granini from advertising the beverage ‘Hohes C Immun Water’ using the designation ‘IMMUN WATER’. The lawsuit was filed by the Federation of German Consumer Organisations (vzbv), which argued that the name suggests that the beverage strengthens the immune system – without any scientific basis or approval for this. The drink ‘hohes C IMMUN WATER’ was launched in spring 2022.
© 2024 Eckes-Granini Germany (source: https://www.hohesc.de/products/functional-water/immun-water)
The name ‘Hohes C Immun Water’ had already been registered as a word mark DE 302021117355 by the German Patent and Trade Mark Office in January 2022. The bottle advertised in large letters with the name ‘IMMUN WATER’ and smaller references to the content of vitamin C and D, which are said to contribute to the normal functioning of the immune system. The vzbv considered this to be misleading health advertising, as it suggested a direct impact of the drink on the immune system without any scientific evidence to support this claim.
Court decision:
The Higher Regional Court of Koblenz ruled that the product name could be understood as a health claim, which is inadmissible under the EU Health Claims Regulation because it has not been authorised. The name ‘IMMUN WATER’ suggests a direct positive effect on the immune system, which, in the opinion of the court, has not been proven.
Judgment of the Higher Regional Court of Koblenz of 4 June 2024, Az. 9 U 1314/23 – not legally binding.
The appeal to the Federal Court of Justice (BGH) was not admitted. An appeal against the denial of leave to appeal was filed. The judgment is therefore not yet legally binding. It remains to be seen whether the Federal Court of Justice will come to a different conclusion here. After all, the ECJ has in the past ruled that describing a wine as ‘digestible’ is a violation of the EU Health Claims Regulation (ECJ, judgment of 6 September 2012, case C-544/10).
Problems with health claims: the Maucher Jenkins team will be happy to advise you.
