The general claim “Energy&Vodka” only describes the contents of the composition of the energy drinks, be called without specific properties of the product.

Bundesgerichtshof decides dispute over the name of an alcoholic mixed drink

The general claim “Energy&Vodka” only describes the contents of the composition of the energy drinks, be called without specific properties of the product.

The inter alia for the Competition Law responsible I. Civil Division of the Federal Court held today, that it is the name “ENERGY & VODKA” not an under Regulation (EG) No.. 1924/2006 – der sogenannten Health-Claims-Verordnung – Forbidden indication is.

The defendant sells alcoholic and non-alcoholic drinks of various international brands, including bottled drinks in cans, consisting of vodka and another part. The disputed, as “ENERGY & VODKA” designated mixed drink is to 26,7% of vodka and 73,3% of a caffeinated soft drink and has thus an alcohol content of 10%.

The plaintiff, the protective association of the spirits industry e.V., sees in the name of the beverage “ENERGY & VODKA” a violation of regulations of the European Union. He has therefore taken the defendant to injunction.

The Court of Appeal has the name “ENERGY & VODKA” als nĂ€hrwertbezogene Angabe im Sinne von Art. 2 Abs. 2 No.. 4 Regulation (EG) No.. 1924/2006* angesehen und einen Verstoß gegen Art. 4 Abs. 3 Subparagraph. 2 dieser Verordnung** angenommen. The specification “ENERGY & VODKA” might suggest to the consumer, that the beverage particular beneficial nutritional properties having. Consumers write the drink a stimulating, stimulatory effect on his organism to. For a drink with an alcohol content of 10% , statement inadmissible.

The Federal Court of Appeal judgment which repealed and confirmed the decision of the District Court, which had dismissed the action.

The plaintiff objected to by the name “ENERGY & VODKA” des GetrĂ€nks der Beklagten istso der Bundesgerichtshofkeine Angabe im Sinne von Art. 2 Abs. 2 No.. 1 Regulation (EG) No.. 1924/2006*. With it is made directly or indirectly expressed, that the drink has particular characteristics. Labeled “ENERGY & VODKA” will only address one of the product property, have all the food of the corresponding genus. In such a case, the label is absent special aspect, by Regulation (EG) No.. 1924/2006 bei nĂ€hrwert- should be regulated and health claims. In case of dispute arises for the consumer from the list of ingredients and other details on the disputed presentation of the product readily, that it is a mixed drink, consisting of vodka and an energy drink is. The corresponding “energy” Wirkung dieses GetrĂ€nks ist keine besondere Eigenschaft im Sinne von Art. 2 Abs. 2 No.. 1 Regulation (EG) No.. 1924/2006, but is generally present in energy drinks.

The term “ENERGY & VODKA” also does not violate trademark law regulations of the European Union for spirits under Regulation (EG) No.. 110/2008. Although vodka under those provisions must have a minimum alcohol content of 37,5% show. But this does not exclude, that an energy drink, is mixed with vodka, may contain a reference to this spirit in the name.

Judgment of 9. October 2014 – I ZR 167/12 – ENERGY & VODKA

OLG Hamm – Judgment of 10. July 2012 – 4 You 38/12, WRP 2012, 1572

LG Paderborn – Judgment of 10. January 2012 – 6 The 28/11, juris

Karlsruhe, the 9. October 2014

*Art. 2 Regulation (EG) No.. 1924/2006

(2)Furthermore, the term referred

1.”Specification” any statement or representation, which is not mandatory under Community or national regulations, including pictorial, graphic elements or symbols in any form, explained and the, suggests or brought only indirectly expressed, that a food has particular characteristics;




4.”Nutrition claim” any indication, explained by the, suggests or brought only indirectly expressed, that a food has particular beneficial nutritional properties, due

a)the energy (the calorific value), it

i)supplies,

ii)provides at a reduced or increased rate or

iii)does not provide, and / or

b)of nutrients or other substances, it

iv)contains,

in)contains in reduced or increased proportions or

we)does not contain;

5.”Health claim” any indication, explained by the, suggests or brought only indirectly expressed, that a relationship exists between a food category, a food or one of its constituents and health on the other hand is.

**Art. 4 Regulation (EG) No.. 1924/2006

(3) Beverages with an alcohol content of more than 1,2 Volume percent shall not bear health claims.

For beverages with an alcohol content of more than 1,2 Volume percent are only nutrition claims, referring to low alcohol content or a reduction in the alcohol or a reduction of the energy.

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