Alcohol-free beer is not with the indication “vitalizing” are advertised, if the term no specific health claims within the meaning of Article. 13 Abs. 3 HCVO in conjunction with the notes to the VO (EU) 432/2012 be accompanied and in the beer substances are contained, which are described in Regulation.
Oberlandesgericht Hamm 4 You 19/14 from 20.05.2014 – “vitalizing” inadmissible for non-alcoholic beer
District Court of Arnsberg, 8 The 99/13
§§ §§ 4, 8 UWG, 10, 13 within (EU) 1924/2006 (HCVO), within (EU) 432/2012
On appeal, the plaintiff is the 19. December 2013 announced the judgment 1. Modified commercial chamber of the District Court of Arnsberg.
The defendant is sentenced, on pain of a deadline set for each case of infringement by the court order money is up to 250.000,00 €, alternatively imprisonment up to 6 Months, or imprisonment up to 6 Months, to refrain, in trade for the product "C-alcoholic" with the indication
"Revitalizing"
to advertise, if this is the same as on the back label of the bottle and / or on the so-called six-pack abs according to the following Appendix A.
The defendant shall pay the costs of the dispute.
The judgment is provisionally enforceable. The defendant must enforcement by security in the amount of 130.000,00 € avert, if not does the plaintiff prior to the enforcement of security in the same amount.
The revision is allowed.
1
Reasons:
2
I.
3
The defendant operates a well-known private brewery in Germany. She has the product sold by it sucked "C alcohol-free" on the back label of the bottle and on the packaging of. "Six-packs" with the information "revitalizing", Marked as "refreshing" and "isotonic". On the bottle labels which have become known by boxing brothers L2 and L3 are also mapped. For details of the design of the bottle labels and the packaging of the "six-pack" is made to Annex A to the application reference (Bl. 4, 5 D. A.).
4
The plaintiff, that D e.V., warned the defendant by letter dated 10.05.2013 from. He argued, the advertising of the defendant with the term "revitalizing" for their product "C alcohol-free" ask a health claim within the meaning of Art. 2 Abs. 2 No.. 5 the VO (EG) No.. 1924/2006 (following: HCVO) give. The advertising infringes Article. 10 Abs. 3 HCVO, because no according to the lists under Art. 13 and 14 HCVO approved specific health claim is attached. For details, to the letter of 10.05.2013 (Exhibit K 12) referenced.
5
By letter of 17.05.2013 (Exhibit K 14), is made to the account of the details regarding, dismissed the defendant returns the warning. With further pre-trial letter of 19.06.2013 (Exhibit K 16) shared it with, that stocks of the alleged packages of "six packs" and the bottle labels of "C alcohol-free" "perhaps by the end of the year" would be depleted and that expected at the beginning of the year 2014 Label and packaging would be used with a new design.
6
The plaintiff argued, the challenged claim "revitalizing" was in accordance with § 4 No.. 11 UWG i. In. M. Art. 10 Abs. 3 HCVO unlauter. It states that it is a health claim under Article. 2 Abs. 2 No.. 5 HCVO. The term "vital" will mean "vigorous, blithely, vital understood ". The term "vital signs" paraphrasing the health of the vital body functions. The term "vital substance" will or required as a generic term for all of the human body. the health of the organism beneficial substances considered. The plaintiff in this respect from the judgment of the Senate 30.04.2013 in the process 4 You 149/12 OLG Hamm directed and also asserted, the words "revitalizing" was – similar to "beneficial" or "digestible" – be understood as, that a corresponding effect on the health or at least health-related well-being will caused.
7
This consumer understanding would be strengthened by the application of the product as "sports drink with regenerative effect". At the same time, reference is made to the population of the known health effects of alcohol-free beers. The defendant used the term "revitalizing" a synonym for "recovery time after physical or strenuous activity". In the television commercials for the product "C-alcoholic" the brothers L are shown in locker rooms and consumed after the pit or other physical activity. As such a "sports drink" consumers should perceive the product in supermarkets and would by specifying made "revitalizing" effect of attention on this.
8
The fact that it constitutes a health claim, is also clear from the (Partial)List of permitted health claims under Regulation (EU) No.. 432/2012. After the statement was "carbohydrate-electrolyte solutions contribute to the maintenance of endurance performance during prolonged endurance training at" approved.
9
It also lacked the mandatory indications on the type. 10 Abs. 2 HCVO. Further informed the defendant, that the substances in their product Niacin, Vitamin B12 and folic acid are included. In that regard, specific health claims approved, a "revitalizing effect" would, namely that the substances mentioned would contribute to the reduction of tiredness and fatigue. Let there be the "maintenance and regeneration of vital signs" promised and possibly caused by the consumption of the drink. It were therefore a specific health claim, or at least to a non-specific reference under Article. 10 Abs. 3 HCVO. The defendant had the contested description – common ground – attached no approved specific health claim.
10
Art. 10 Abs. 3 HCVO that, contrary to the matter "medicinal mushrooms" expressed the Bundesgerichtshof (Wheat 2013, 958) already enforceable. In addition, only the Court of Justice of the European Union's competence to stand, to explain the provision directly applicable not applicable.
11
The defendant initially be collected and presented the statute of limitations, they have their product "C alcohol-free" in early 2011 "revitalizing" advertised with the brothers L and the indication. The plaintiff is the alleged infringement since at least the year 2011 known. A possible injunctive relief the plaintiff was also forfeited. He had waited in full knowledge of the facts more than two years. You – The defendant – had "revitalizing" developed a comprehensive advertising plan with the brothers L and the term almost three years ago.
12
In addition, she has taken the view, the scope of HCVO was not opened. The term "revitalizing" does not constitute a health claim is, but will be used primarily in connection with the advertising L2 and L3. There were a play on words relating to the advertising. The term "revitalizing" will also used for a variety of products as a promotional formula and relates at most to a general product preference, namely the "Sensor" and the taste. Consumers understand this expression as an advertising slogan without verifiable factual core meaning "sparkling or. refreshing ", but not in the medical sense of "Vital Signs".
13
The Commission also made it clear in a press release, that information such as "F gives you wings" are not covered by the HCVO. Even with a slogan like "a soothing pleasure" is – as the Advocate General pointed out in the G C-609/12 case before the Court of Justice of the European Union – not opened the scope of HCVO, because the absence of a reference to the health. The same applies to the term "revitalizing". It could be doing at most by a general reference under Article. 10 Abs. 3 HCVO trade. According to the jurisprudence of the Federal Court the obligation contained in this standard for the supply of a specific health claim could not be accomplished, however,, as long as the lists of permitted health claims by type. 13 and 14 HCVO are not yet fully created.
14
The plaintiff replies, he had only shortly before the creation of the warning in early May 2013 obtained by one of its members aware of the challenged advertising the defendant. The injunction was also not barred, because the defendant had informed pre-trial, they'll be the offending labels and cartons of "six-pack" until the end of 2013 use and placing on the market. Also a forfeiture did not occur.
15
Because of the applications submitted in the first instance the parties will be referred to the facts of the judgment, with the district court dismissed the action.
16
In support, it has carried out essentially, the scope of HCVO was not opened, because the application of the product "C alcohol-free" no nutrition- and containing health claims.
17
The concept of the health claim detected any connection, implies the improvement of the health status thanks to the consumption of the food, but not also the general well-being. The term "revitalizing" is a synonym for the words "activating, stimulating, encouragingly, invigorating, refreshing, erquickend, stimulating ". Demanding that the enjoyment of the beer cause "C alcohol-free" improving the state of health, let alone from the application of the product with the expression does not refer to "revitalizing". None of the above synonyms come to the importance of improving health. In addition, the term refers "revitalizing" here on the advertising L2. This promotional statement contains only non-specific information within the meaning of Article 10 Abs. 3 HCVO. This provision could so long, the lists referred to in Article 13 and 14 HCVO were not created, are not yet completed. The alleged injunctive finally not is also clear from other provisions, especially not from a violation of § 11 Abs. 1 LFGB und §§ 5, 5a UWG.
18
Against this judgment, the appeal by the plaintiff is directed, with which he alleges, the district court erred in finding, that no infringement of Article 10 Abs. 1 and Abs. 3 HCVO vorliege. He repeated and deepened his submissions at first instance, that it is "revitalizing" constituted a health claim for the use of the term. This should be understood as a reference to a "sports drink similar effect". This is about the awarding of a property of the drink and not a reference to the advertising L2. On the packaging of the "six-packs" No images of men L are available. It could be left, whether it concerns a specific health, the lack of approval by Type. 10 Abs. 1 HCVO prohibited or lack of sufficient enlightening notes by Type. 10 Abs. 2 HCVO is inadmissible or whether a non-specific health claim on the type. 10 Abs. 3 HCVO vorliege, which was accompanied by a lack of specific health claim inadmissible. Art. 10 Abs. 3 HCVO is applicable. The district court misinterpreted the scope of the decision of the Federal Court in terms of "medicinal mushrooms". It had gone there to health claims for an herbal dietary supplement. For herbal substances ("Botanicals") is as yet no Community list available. For all already authorized health claims is true type. 10 Abs. 3 HCVO directly, as well as such information, which represented a short form for related vitamins or minerals specific information.
19
The applicant claims,
20
amend the judgment under appeal and order the defendant, on pain of a deadline set for each case of infringement by the court order money is up to 250.000,00 €, alternatively imprisonment up to 6 Months, or imprisonment up to 6 Months, to refrain, in trade for the product "C-alcoholic" with the indication
21
"Revitalizing"
22
to advertise, if this is the same as on the back label of the bottle and / or on the so-called six-pack abs according to the following system A and the product is sold to end users.
23
The defendant claims,
24
dismiss the appeal.
25
It defends the judgment of the district court with more detailed comments: In the competition brief as "revitalizing" if it were a general striking praise, but not a health claim. The applicant could as justification for his lecture, that the defendant "alcohol-free C" marketed their product as a sports drink, not on the print media in accordance with Appendix K 7 support. These came from the year 2011 and could no longer be attacked under competition law, because a potential claim is time-barred. The use of the term "isotonic" could not rely in support of an infringement of competition law, the applicant, because he had not attacked the use of this expression. The plaintiff contradicts itself, moreover,. On the one hand that he contends, the term "revitalizing" is a specific health claim. On the other hand, he meant, consumers do not understand without further specification, what was meant by "revitalizing". What matters here at best, a general reference within the meaning of Art. 10 Abs. 3 HCVO into consideration. The defendant claims with reference to the jurisdiction of the Federal Court in the case of "medicinal mushrooms" continue, the obligation to enclose an approved health claim could not be completed.
26
For further details of the factual evidence of the parties, reference is made to the content of submitted to the filing pleadings and the annexes.
27
II.
28
The appeal by the plaintiff is admissible and well founded.
29
Wrongly, the district court dismissed the action.
30
1.
31
The action may be.
32
A)
33
The application for an injunction is sufficiently determined with reference to the particular concrete form of infringement within the meaning of § 253 Abs. 2 No.. 2 ZPO. As to the applicant "is done and the delivery to end users" at the suggestion of the Senate its request by the addition has added precaution, this was done solely for clarification purposes. Nevertheless, the Senate ultimately not included this addition in the judgment Operative part, because the product at issue "C alcohol-free" is unambiguously determined to delivery to the final (vgl. § 1 Abs. 2 HCVO) and was duly explicit clarification is unnecessary.
34
B)
35
The applicant is required by § 8 Abs. 3 No.. 2 UWG klagebefugt, what the defendant does not take into doubt.
36
2.
37
The action is also justified.
38
The plaintiff is directed against the defendant asserted injunctive relief under § § 8 Abs. 1 and Abs. 3 No.. 2; 3 Abs. 1; 4 No.. 11 UWG i. In. M. Art. 10 Abs. 3 HCVO zu.
39
A)
40
The impugned mark of the defendant's product with the indication of "revitalizing" on the vial label and the carton of the "six-pack" is undoubtedly a commercial practice within the meaning of § 2 Abs. 1 No.. 1 UWG dar. Because it is related to the promotion of sales of product together objectively.
41
B)
42
This commercial practice is unfair. Because it meets the breach of law elements of § 4 No.. 11 UWG i. In. M. Art. 10 Abs. 3 HCVO.
43
aa)
44
The provisions of HCVO - esp. the provisions in Art 10 – are market conduct regulations within the meaning of § 4 No.. 11 UWG (Köhler / Bornkamm, 32. Ed, § 4 UWG Rn. 11.137a m. In. N.).
45
bb)
46
The scope of the HCVO is here opened. This Regulation shall apply according to their type. 1 Abs. 2 for nutrition- and health claims, which are made in commercial communications in the labeling, presentation or advertising of foods, to be delivered as such to the consumer.
47
Undoubtedly this is included with the product "C alcohol-free" to a food within the meaning of Art. 2 Abs. 1 A) HCVO i. In. M. Art. 2 Regulation (EG) No.. 178/2002. This is intended for use by end users. The term "revitalizing" has been made in a commercial release in the labeling of such food. Because it is attached to the label of the bottle and the packaging of the "six-pack abs" (the concept of marking cf. Art. 2 Abs. 2 j) Regulation (EU) 1169/2011).
48
Not Art. 2 Abs. 2 No.. 5 HCVO is given a health claim, when declared with an indication, 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. The term "context" is to be understood broadly (ECJ, Wheat 2012, 1161 – German Wine Gate; ECJ, Wheat 2013, 1061 – Green – Swan Pharmaceuticals). The term "health claim" includes any connection, which implies an improvement of the health status thanks to the consumption of the food (ECJ, Wheat 2012, 1161 – German Wine Gate; BGH, Wheat 2013, 189 – H2; BGH, Wheat 2013, 958 – Vitalpilze; BGH, WRP 2014, 562 - Praebiotik). According to recital 16 the HCVO it is important, such information is easily understood by the consumer on food. It is informed by the normal, observant and circumspect average consumer to go (BGH, WRP 2014, 562 - Praebiotik).
49
By these standards, the words 'revitalizing' health-related, contrary to the view of the District Court as part of the product at issue markings. For the meaning of the word is already talking of this expression. So the verb "revitalize" "animate" and "stimulate" (vgl. Duden Online (www.duden.de), Keyword "revitalize"). From the perspective of the target consumers of the expression depends "revitalizing" directly connected with "vitality" or. "Vitalsein" or "life force". These properties are typically associated with a common. For this reason alone brings the adjective "revitalizing" the improvement of the health status expressed (vgl. BGH, Wheat 2013, 958 – Vitalpilze – the health claim "to support optimum performance” and "… increases stamina and performance "; Senate, Judgment of 30.04.2013 – 4 You 149/12 – the health claim "About 7.000 all-natural nutrients give you, especially in spring, the necessary momentum for the summer ", where "momentum" was to be understood as "strength and stamina" in connection with another advertising statement; Meyer/Streinz, 2. Ed, HCVO, RN. 61 the health claim "vitality").
50
The affected product labels give the impression, that by specifying "revitalizing" suggested improvements in health caused by the consumption of the drink "C alcohol-free".
51
Although the Senate is not unaware, that the expression can be "revitalizing" brought certainly in conjunction with the advertising and L2 may have been targeted by the defendant this "pun", to increase the effectiveness of their advertising. The fact that the consumers make such a reference to the person L2, located with respect to the bottle label particularly close. Because are in this – otherwise than on the package of the "six-pack abs", the the so called. "Troublemakers" with the text "like taking a photograph with the Ls?"Contains – mapped both L2 and L3 his brother.
52
But the fact remains, that is accented with the label as "revitalizing" at least also a characteristic of the product "C-alcoholic". This already follows from, that the words "revitalizing" in close proximity to each with the names "refreshing" and "isotonic" is, by is this immediately precedes. The terms "refreshing" and "isotonic" unquestionably describe properties of the beverage concerned. Also the fact, that behind each of the three terms ("Revitalizing", "Refreshing" and "isotonic") a "check" is, which is set in a white circle, places the consumer understanding close, that all three entries are intended to identify a product property.
53
The relevant average consumer will interpret this in terms of a confirmation then, that the drink actually "revitalizing", "Refreshing" and "isotonic" is. Understanding, that an improvement in health status is achieved by the consumption of the product, located just near because of the reference to the two advertising L. These have become well known for their achievements in boxing. Thereby, that they advertise "alcohol-free C" for, by clicking on the label at issue in each case with a bottle of the product, they hold in the hand, are shown and her name appears on the packaging of the "six-pack abs", can reach a significant proportion of the relevant consumers to believe, that the advertising of the product approve because of its three mentioned properties and consume it yourself, to do something for their "vitality" and thus for their health.
54
On the other hand, that here in the sense of "refreshing" is meant "revitalizing" and thus non-health on well-being, but on the – not covered by the scope of the HCVO - reflects general well-being, supported by the fact, that the product is explicitly just advertised as "refreshing". It follows from the target consumers point of view does not make sense, perform "revitalizing" and "refreshing" separately, the terms, when using them, the same should be expressed.
55
It follows that takes the specification used in the present product labels "revitalizing" the to be supported by the consumption of drink or. to enhancing health wellbeing reference. It is not to be equated with a statement like "a soothing pleasure".
56
This is not merely to be specific, but a non-specific indication in terms of type. 10 Abs. 3 HCVO (vgl. Meyer /Streinz, A. A. O., for non-specific health claim "vitality"). Because when specifying missing a reference to certain functions of the body to be delivered (vgl. BGH, Wheat 2013, 958 - Vitalpilze). Nevertheless, the fact remains, that a health claim within the meaning of Art. 2 Abs. 2 No.. 5 HCVO present (BVerwG, WRP 2011, 103, 104 – German Wine Gate; BGH, Wheat 2013, 958 - Vitalpilze).
57
cc)
58
The question of the admissibility of the present non-specific health claim assessed according to the type. 10 Abs. 3 HCVO. The determination of the type. 10 Abs. 1 HCVO is not relevant here. This governs the admissibility of such information, the health benefits related to specific and may be the subject of an authorization procedure (vgl. BGH, Wheat 2013, 958 - Vitalpilze).
59
Gemäß Art. 10 Abs. 3 HCVO are references to general, specific benefits of the nutrient or food for overall good health or health-related well-being may only, if them in one of the lists referred to in Article 13 or 14 is the regulation contained specific health claim attached (suction. Koppelungsgebot).
60
According to the jurisprudence of the Federal Court (Wheat 2013, 958 - Vitalpilze; vgl. also Büscher, Wheat 2013, 969, 977) to the limited prohibition of Art. 10 Abs. 3 HCVO however presuppose, that these lists are created: As long as this is not yet done, is the use of appropriate references by Regulation (EG) No.. 1924/2006 – as the Federal – not regulated. Because otherwise contained this Regulation to the extent contrary to the wishes of the legislature, as in the transitional provisions of its kind. 28 had clearly been expressed, first a stricter regime than later. In those circumstances, the (Partial)Liste not Art. 13 Abs. 3 Regulation (EG) No.. 1924/2006 in accordance with Regulation (EG) No.. 432/2012 does not change the legal situation significantly.
61
These considerations do not result in the present case by this Court's opinion, however, the inapplicability of the Art. 10 Abs. 3 HCVO. For in the case to be decided by the Federal Court "medicinal mushrooms" it was about health claims on botanicals (suction. "Botanicals"). In terms of herbal substances, the list of permitted health claims has not yet been conclusively (Senate, Judgment of 04.07.2013 – 4 You 20/13 = WRP 2013, 1491). The results from the recital 10 to Regulation (EG) No.. 432/2012, who pointed out, that sucked. Have yet to be scientifically evaluated "Botanicals" by the authority. As far as the test method is not still completed, like the recital 5 Regulation (EU) No.. 536/2013 follows:
62
"... As the Commission considers these concerns to be relevant and further testing and consultation necessary, should have information on botanicals only then a decision should be taken, If these steps have been completed ".
63
Here, however, is a health claim to a non-alcoholic beer in question. It is common ground in the materials niacin, Contain vitamin B12 and folic acid, as the defendant in its pre-litigation letter dated 17.05.2013 (Exhibit K 14) has informed. With regard to the substances niacin, Vitamin B12 and folate is in the list of permitted health claims in the Annex to Regulation (EU) 432/2012 since the 14.12.2012 You. A. the indication approved, that these substances contribute to the reduction of tiredness and fatigue. Not Art. 1 This Regulation is the list of permitted health claims pursuant to Article 13 Abs. 3 HCVO, which may be made on foods, defined in the Annex to Regulation. Regulation (EU) 432/2012 applies to their type. 2 since the 14.12.2012.
64
Also the HCVO does not reveal any determination, that their type. 10 Abs. 3 only be implemented or. can be accomplished, if the list of authorized claims fully present. The Federal Court in the case of "medicinal mushrooms" argument put forward, that the HCVO in an application of the prohibition of Art. 10 Abs. 3 before drawing up the lists contained more stringent rules than later, does not contribute in the present case. Because – as stated above – is for the substances niacin, Vitamin B12 und Folat, may have a health effect, already approved appropriate specific health claim in the existing parts list, which a general indication within the meaning of Art. 10 Abs. 3 HCVO can be attached.
65
For applicability and enforceability of the Art. 10 Abs. 3 HCVO before full drawing up the lists by type. 13 and 14 HCVO speak the guidelines for implementation of Article. 10 HCVO, by the Commission under Art. 10 Abs. 4 HCVO with Implementing Decision of 24.01.2013 adopted (DB 2013/63/EU). In the introduction to the Guidelines states with more detailed comments without restriction, dass Art. 10 HCVO Note. The guidelines refer to point 3. also explicitly type. 10 Abs. 3 HCVO. There is a provision inapplicable to complete the lists no question.
66
Furthermore, the Advocate General G in proceedings before the Court of Justice of the European Union (Rechtssache C-609/12) on the preliminary ruling from the Bundesgerichtshof (Wheat 2013, 189 – H2) the question of the temporal application of Article. 10 Abs. 2 HCVO as part of his Opinion of 14.11.2013 (BeckRS 2013, 82168, dort Rn. 65) expressed the view, that there representational advertising for the Früchtequark "H2" from "H" with the slogan "As important as the daily glass of milk!"Against nature. 10 Abs. 3 HCVO violates, if this is a non-specific indication in terms of this standard. Art. 10 Abs. 3 HCVO had since 01.07.2007 demand in power and, that in the type. 13 and 14 provided lists were published, which was not the case at the material time. The Court of Justice of the European Union draws in its judgment of 10.04.2014 – C-609/12 – (BeckRS 2014, 80708) applicability of Art. 10 Abs. 3 HCVO in any case be considered, although the list by type. 13 Abs. 3 HCVO not been completed yet. Thus we read in para. 36 of the judgment:
67
"Without prejudice to the possible application of Article. 10 Abs. 3 of Regulation No. 1924/2006 …“.
68
Against this backdrop, the Senate sees on the question of the applicability of Art. 10 Abs. 3 HCVO in a situation such as the present case, not according to a submission to the Court of Justice of the European Union type. 267 AEUV veranlasst.
69
Finally, by the Federal Court in terms of "medicinal mushrooms" (Wheat 2013, 958) mentioned Austrian "1. Orientation decree "to HCVO, which is referred to the references cited therein, now obsolete. In the new orientation the adoption of the Austrian Federal Ministry of Health of 12.07.2012 (BMG-75335/0006-II/B/13/2012) say it now to type. 10 Abs. 3 HCVO:
70
"... Since the conditions for the use of health claims now with the list in accordance with Article. 13 are defined, This provision is - at the end of the transitional provision under Regulation (EU) No.. 432/2012 - To comply with, insofar as it does not affect data, die „on hold“ sind (D. h. evaluated by the EFSA, but no decision within the framework of the comitology) or. have not yet been evaluated (You. A. herbal substances).“
71
It follows that the Senate considers the provision of Art. 10 Abs. 3 HCVO in the present case to be applicable (vgl. also Hagenmeyer, ZLR 2013, 702; Stallberg, LMUR 2013, 189; Meyer/Streinz, 2. Ed, HCVO, RN. 58).
72
Since the defendant has attached to the non-specific indication of "revitalizing" indisputably no approved specific health claim, she has to type. 10 Abs. 3 HCVO violate.
73
C)
74
Because of this infringement of competition law the existence of a danger of recurrence is actually suspected. A penalty clause explanation of the defendant is not present.
75
D)
76
The union illegal product labels are also suitable, competition in the relevant market here the food (Drinks) to the detriment of competitors and consumers in terms of § 3 Abs. 1 To affect appreciably the UWG (vgl. BGH, Wheat 2013, 958 - Vitalpilze - m. In. N.). Because it's the high of protection of consumers' health. It should also be the goal of HCVO, the proper functioning of the internal market in relation to nutrition- sure and health claims to offer the same in view of a varied and balanced diet a high level of consumer protection, vgl. Recitals 1 and 36 there HCVO (Senate, Judgment of 30.04.2013, 4 You 149/12).
77
It)
78
The part of the defendant raised the plea of limitation can not be upheld.
79
The six-month limitation period pursuant. § 11 Abs. 1 UWG begins after § 11 Abs. 2 UWG, if the claim arose and the creditor obtained by determining the operative circumstances and the person of the debtor's knowledge or without gross negligence would.
80
Since the defendant in her pre-trial letter of 19.06.2013 (Exhibit K 16) themselves informed, that stocks of the alleged packages of "six packs" and the bottle labels of "C alcohol-free" "perhaps by the end of the year" would be depleted and that expected at the beginning of the year 2014 Label and packaging would be used with a new design, The Senate expects, to the offending product labels until the end of the year 2013 has used, and the anti-competitive engagement lasted until then. Under these circumstances, a continuing act was before, so that the limitation period has not yet begun to run (vgl. Köhler / Bornkamm, UWG, 32. Ed, § 11 RN. 1.21).
81
The defendant is also the argument of the plaintiff, he had only shortly before the creation of the warning in early May 2013 obtained by one of its members aware of the challenged advertising, countered not concrete. Your argument, the applicant was the alleged violation "since at least 2011" known, is too general. On the date of knowledge of the plaintiff by the defendant newspaper ads, the already 2011 were published, it matters not, because these ads are not streitgegenständlich. It is here only about the labeling of the product with the indication of "revitalizing" on the vial labels and cartons. Incidentally, it is not clear, when the plaintiff has actually become aware of the newspaper ads.
82
Furthermore, circumstances, suggesting a grossly negligent ignorance of the plaintiff, neither specifically argued or otherwise apparent.
83
Even if no inhaled. Duration of action vorläge and the statute of limitations already from obtaining knowledge of the plaintiff in May 2013 began to run, is the statute of limitations in any event, upon receipt of the application on 31.07.2013 been inhibited at the District Court, § 204 Abs. 1 No.. 1 BGB i. In. M. § 167 ZPO.
84
F)
85
Under these circumstances, the claim for injunctive relief the plaintiff is not forfeited, because it is already at a preventable failure to act of the plaintiff over a sufficiently long period (suction. Zeitmoment) missing. In addition, the Verwirkungseinwand does not work here also, therefore, a, because the injury, which relates to the field of health promotion, also affected the public interest (vgl. Köhler / Bornkamm, UWG, 32. Ed, § 11 RN. 2.33 f.).
86
III.
87
The procedural side decisions are based on § § 91 Abs. 1, 708 No.. 10, 711 ZPO.
88
IV.
89
The Revision war Gemäß § 543 Abs. 2 No.. 2 Allow ZPO, because the decision of the Court of Appeals is both necessary for development of the law as well as to ensure uniform case law.