You can also spot-anticompetitive, as other praise carefree enjoyment of light products

The LG Hamburg has the “Are you allowed”-Commercial for anti-competitive: Contrary to the defendant contested the advertising message here understood by the consumer and not as a mere advertisement extolling even without factual core still in their inaccuracy reliably detected. Even if the advertising consumers experienced here makes certain concessions and not all statements “at face value” takes, he removes the advertising however the factual claim, advertised products would allow him something, what was with the usual food is not possible, namely to enjoy carefree and can have enough to eat at all, to, what he had just lust. That this is incorrect, the consumer is often not recognized. Even if one assumes, that the intelligent consumer is known, that he can not eat a lot of unlimited, without having to become overweight, this does not mislead by the disputed advertising. Because consumers are not widely known, that calorie products can not be enjoyed carefree and that you can eat your fill of such products is also not with all, what did you feel like. By the widespread advertising of light products is on the contrary for many consumers the impression caused, foods that give, where you can eat yourself sick hearted, without fear of gaining weight must. Here is one by promoting low-calorie foods in general and the products of the defendant in particular widespread misconception to the effect, that one can enjoy low calorie foods quite carefree and until the onset of saturation. Many consumers is not known in this case, for example, low calorie sausage- or cheese products still have a high energy density and therefore lead to weight gain, if you are tired of eating in these products, without paying attention to the calories.

LG Hamburg 406 HKO 107/12 “You can”-Commercial

Food Law Competition Law Civil law §§ 5, 8, 12, 3 UWG
Tenor

1. The defendant is sentenced, it while avoiding a deadline set for each breach administrative fine of up to EUR 250.000,00, alternatively imprisonment up to 6 Months, or imprisonment up to 6 Refrain months, in the context of business operations for “You can”-Products with a television commercial “Diet without me” such as on plant K 1 that judgment accompanying data DVD played, or advertise. let advertise.

2. The defendant is also convicted, the applicant EUR 214,00 (i. W.: EUR two hundred fourteen 00/100) plus interest in the amount of 5 Percentage points above the base rate since 17.07.2012 to pay.

3. The defendant must pay the costs of litigation.

4. The judgment is provisionally enforceable, to 1. against collateral in the amount of EUR 15.000,00, to 2. and 3. against collateral in the amount of 110 % of each amount to be enforced.
Facts

The applicant against the defendant following an unsuccessful prejudgment Warning on cessation of advertisement with the system of K 1 apparent advert claim.

The text for this advert reads in part as follows: “This is for, Nothing to do without, who also eat the … and especially what they feel like. You do not want to count calories? Then do not hesitate. With “you may” You can enjoy carefree. Because “you may” means above all: You have nothing. Easy to grip. Diet – without me. You can not.” Is due to the further details on plant K 1 Referring.

The plaintiff says, whether advertising is misleading, because it would suggest to her overweight individuals, they could by eating “you may”Products give up on a diet and still lose weight, without having to restrict their usual eating habits have. People of normal weight will give the false impression, by “you may”Products you can eat without gaining weight as much and as often, as you feel like it, no increase in weight.

The applicant claims

recognized as.

The defendant claims

Klagabweisung.

The defendant argues, that the disputed advertisement was not misleading. The relevant for the legal assessment circumspect know of course, that excessive intake also promoted products sooner or later inevitably lead to weight gain and understand the statements at issue in the commercial against this background as quite usual promotional praise. The spot conveys the Werbernaßnahmen for all the products advertised in 30 Years underlying message, that it is desirable in any way be, to undergo diets, for the purpose of weight reduction and an exaggerated ideal of slimness serve. Against this background, the brand stands “you may” neither diets nor unbridled consumption, but just for a thoughtful and healthy relation with your body and food. Even the image of the election commercials is only intended to convey a positive attitude to life and show the rest, the importance of this activity and exercise are. Finally, would occur in the advertising people eat only small amounts of the advertised products.

Supplementing the arguments of the parties referred to their pleadings and the annexes.
Reasons

The allowable claim is justified.

The plaintiff is pursuant to § § 3,5,8, 12 UWG authorized, the defendant to take with regard to the disputed commercials for an injunction and reimbursement of claim in Abmahnkosten, because the disputed advertisement is misleading. The advertisement gives the consumer more than just, that it is not desirable, to follow strict diets and an exaggerated ideal of slimness. The entire spot is aimed at, to convey the message, with “you may” any consumer can enjoy carefree food, as is already the brand “you may” expresses. Accordingly, it is in the ad also explicitly: “With you must you can enjoy carefree.” The further text of the commercial encourages consumers, get rid of pesky dietary, to miss out on anything, to eat their fill of everything, what did you feel like, without having to count calories. The images shown in this context leaner and more active people underline the text and by the expressed message, that this benefit with “you may”-Products can be made light-hearted, So no to the other products of uncontrolled eating, many people observed weight gain. In this case here, those public disregarded, the basis of relevant life- or working conditions, their genetic disposition or other circumstances do not have weight problems. Because the advertising is aimed at people, the increase rapidly, when used in the diet to nothing at all, and refrain, what they happen to feel like, satt essential, for such a pleasure usually anything but “jauntily” is, but it could cause, that they are significantly heavier. These individuals suggests the disputed advertisement, that they benefit from the advertised brand of food “you may” can fully enjoy everything, what can happen to feel like it and still as lean and stay active or be, such as those depicted in the advertising people.

Contrary to the defendant contested the advertising message here understood by the consumer and not as a mere advertisement extolling even without factual core still in their inaccuracy reliably detected. Even if the advertising consumers experienced here makes certain concessions and not all statements “at face value” takes, he removes the advertising however the factual claim, advertised products would allow him something, what was with the usual food is not possible, namely to enjoy carefree and can have enough to eat at all, to, what he had just lust. That this is incorrect, the consumer is often not recognized. Even if one assumes, that the intelligent consumer is known, that he can not eat a lot of unlimited, without having to become overweight, this does not mislead by the disputed advertising. Because consumers are not widely known, that calorie products can not be enjoyed carefree and that you can eat your fill of such products is also not with all, what did you feel like. By the widespread advertising of light products is on the contrary for many consumers the impression caused, foods that give, where you can eat yourself sick hearted, without fear of gaining weight must. Here is one by promoting low-calorie foods in general and the products of the defendant in particular widespread misconception to the effect, that one can enjoy low calorie foods quite carefree and until the onset of saturation. Many consumers is not known in this case, for example, low calorie sausage- or cheese products still have a high energy density and therefore lead to weight gain, if you are tired of eating in these products, without paying attention to the calories.

The interest claim follows from § § 286, 288, 291 BGB.

In addition to the procedural decisions based on § § 91, 709 ZPO.

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