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Hans-Peter Kröger Whether fine knives, accessories or delicacies: Many wine merchants advertise complementary offers with geographical indications of origin. But if a product is not manufactured in the named country in all essential stages of production, this constitutes misleading the consumer. The consequence: warning letter.

Consumers associate indications of origin such as "Himalayan salt", "Made in Germany", "Japanese knife" or "Swiss watch" with a promise of special quality and workmanship. No wonder that many wine merchants also like to advertise many of their products with geographical indications to complement their product range. But beware: if they advertise with origin-related statements, but the product was not manufactured in the named country in all essential stages of production, this constitutes misleading the consumer by making an untrue claim, §§ 126, 127 MarkenG (Law on the Protection of Trademarks and Other Signs), §§ 3, 5 UWG (Law against Unfair Competition).

§ Section 127 (1) MarkenG on the protection of geographical indications of source specifies:

Geographical indications of source may not be used in the course of trade for goods or services which do not originate from the place, region, area or country designated by the geographical indication of source , if the use of such names, indications or signs for goods or services of a different origin would be liable to mislead as to the geographical origin.

  1. If the goods or services designated by a geographical indication have special characteristics or a special quality, the geographical indication may only be used in the course of trade for the corresponding goods or services of that origin if the goods or services have those characteristics or that quality.

One of my clients sold a "Japanese knife", but its manufacture was in China. This is only not misleading to the consumer if the knife has also undergone a treatment in Japan which is decisive for the product quality (cf. Section 127 (2) MarkenG). However, he would have had to provide precise and unambiguous evidence of this additional treatment step.

§ Section 5 UWG (information on misleading commercial acts) clarifies this in paragraph 1 and paragraph 2:

  1. A person acts unfairly if he engages in a misleading commercial act which is likely to induce the consumer or other market participant to take a commercial decision which he would not otherwise have taken.

  2. A commercial act is misleading if it contains untrue statements or other statements likely to deceive (...):

If you take advantage of the good reputation of the traditional Japanese manufacturing art, the sharpness and the durability of the knives by the untrue advertising statement "Japanese knife", you may have induced your customers to make a perhaps more expensive purchase decision which they would not have made if they had known the true country of origin.

The consequence: warning letter!

Again and again online traders receive warning letters, whose knife offers contained false advertising - as did my client: he was warned by the law firm Schleinkofer with exactly this reason. With the warning letter he was requested to stop advertising with the claim "Japanese knife" and to submit a cease-and-desist declaration with a penalty clause within a certain period of time. A draft was enclosed with the warning letter.

Furthermore, the lawyer's fees were to be reimbursed from a value in dispute of EUR 30,000.00 - this resulted in a gross claim of EUR 1,501.19.

My tip:

In the case of warning letter, I advise you never to sign the attached, punishable cease-and-desist declaration hastily and without checking it. It can be used against you for the rest of your "online life" - and thus trigger far-reaching obligations to act and high costs to remedy infringements that have already been warned (risk of repetition)!

For this reason, I also advise against contacting the law firm issuing the warning independently, because there is likely to be a considerable imbalance of knowledge and experience, which could have a lasting negative impact on your legal position.

If it is a justified warning letter, it can usually be sufficient to only issue a modified cease-and-desist declaration .

I take this point as an opportunity to offer my work and my tried and tested protection packages protection packages: With them, online shop operators can feel completely protected at all times. Just take a look!

Above all, my newsletters especially for wine merchants not only keep you up to date on legal matters, but also offer you helpful wording suggestions when you need them. This is the only way you can be safe from warning letters.

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