17. November 2015
An innovative way to make condoms more attractive or a case of deceptive advertising? On 26 November 2015, the judges from Düsseldorf’s Regional Court will announce their final decision as to whether or not the above slogan has the potential to deceive consumers. In one of Germany’s most unusual legal disputes, WILDE BEUGER SOLMECKE represents the defendants.
Meet the Einhörner (German for unicorns) Waldemar and Philip, two young entrepreneurs from Berlin with some great ideas and a clear vision ahead. They plan to establish a new brand of condoms, characterized not only by transparency and fairness in the entire production process, but also by an innovative, chips like package.
On the right backside of the package and in a rather humorous way, numerous “additional values” are indicated, somewhat resembling the ingredients information on a supermarket product. These include, among others, “embarrassing shopping experience: 0 %“, „may contain traces of pixie dust” and “Happyness-Factor”.
However, it was the statement „A 7-condom pack corresponding to up to 21 orgasms“, which got the Einhörner into legal trouble. Another condom manufacturer issued an out-of-court warning letter, accusing the Einhörner of unfair competition. They claimed the slogan should be considered deceptive as it misleads the consumers into believing a single condom could be used up to three times.
The competitor brought the claim to Court and was granted an injunction order. The competent Chamber backed claimant’s arguments at first, assuming a case of unfair advertising. Since condoms are medical products, all instructions and information on their package should be unequivocal and clear so as not to allow any misunderstandings.
The new European consumer concept
Our firm opposed the decision on behalf of the Einhörner, arguing that both the package and user manual contain unambiguous advice regarding the product’s suitability for a single use only. Considering the European Court of Justice’s new model of an average consumer who is reasonably well informed and reasonably observant, we further argued that any individual buying an Einhorn condom would clearly recognize the humor behind the “additional values” and their lack of seriousness.
The notion of multiple orgasms under threat?
The Einhörner’s main argument however is the fact that the female partner’s orgasm(s) must be taken into account as well so it certainly is possible to experience more than one orgasm with a single condom. As a reaction to the ongoing legal dispute and to defend the notion of multiple orgasms, the Einhörner even organized several public events, thus managing to use the injunction proceedings in their favor.
But is the slogan „A 7-condom pack corresponding to up to 21 orgasms“misleading after all? The decision will be announced on 26 November.
Do you have concerns about your slogans and advertising strategy?
As the above case clearly shows, using bold, provocative statements to promote your products or services may surely be good marketing, but it may be legally problematic too, particularly from the perspective of a deception in accordance with Germany’s Act against Unfair Competition. Deception may arise not just from providing misleading information about specific characteristics of the goods or services, but also from failing to provide significant information, which can influence your customer’s purchasing decision.
Our experts in the field of competition law can provide you with an in-depth analysis and consultation regarding your advertising strategy, so as to ensure your slogans are legally safe.
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