Competition

Nivea Invisible for Black and White deo misleads consumers

A court in Germany has ruled that Beiersdorf AG deodorant advertising for Nivea Invisible for Black and White misleads consumers.

Nivea Invisible for Black and White deo misleads consumers ©-ferkelraggae-Fotolia-Fotolia_31081868_XS

Nivea Invisible for Black and White deo misleads consumers ©-ferkelraggae-Fotolia-Fotolia_31081868_XS

Nivea Invisible for Black and White

Beiersdorf AG which produces the Nivea Invisible for Black and White deodorant has been told by a German court that it’s advertising is misleading consumers (case ref.: 14c O 94/13).

In a number of television advertisements in Germany the deodorant is said to be the ‘no. 1 against deodorant marks’; ‘no. 1 against yellow marks’, ‘Number 1 protection against deodorant marks’; ‘the best deodorant against yellow marks’; and ‘black stays black’.

After having been presented fabric samples as evidence, the Regional Court of Düsseldorf came to the conclusion that Nivea’s slogans are false and therefore breach German competition law by misleading consumers.

Background

The judgment came after one of Beiersdorf AG’s competitors sued the firm and sought an injunction to prevent it from continuing to use the advertising slogans.

The competitor had argued that the slogans gave consumers the wrong impression that the Nivea Invisible for Black and White brand was the best deodorant on the market for preventing the appearance of marks on clothes and skin.

In addition, the competitor asserted that the claim about black clothes remaining black was untrue, as clothes did not stay completely and continuously black when the deodorant is used.

Furthermore, the competitor contended that the products contain Aluminium Chlorohydrate and are therefore in fact not deodorants but antiperspirants and that only antiperspirants cause marks.

The court saw evidence of fabric samples with stains which appeared immediately after the application of the Nivea Invisible for Black and White products and which remained visible even after 24 hours.

Beiersdorf argued that the wash tests which had been used to create the stains did not represent real life situations and that a salt solution, as opposed to sweat, had been used. Together, these elements distorted the results.

However, based on the evidence, the court ruled in favour of the claimant.

According to the judges, the advertisements mislead the average consumer as they contain untrue statements about the qualities of the products. The advertisements therefore breach §§ 3, 5(1) of the German Unfair Competition Act, the court decided.

Beiersdorf was ordered to cease using the above mentioned slogans.

Misleading statements

The perception of the average consumer is crucial to the analysis of whether a business practice is misleading. The judges commented that as they use deodorant, they were in a position to assess the slogans from the view point of an average consumer.

The court decided that the advertisements, and in particular the use of the words ‘number one’, created an impression among average consumers that the products delivered top performance. Consumers who hear or read such advertisements automatically draw comparisons to other similar products on the market and develop an impression as to the quality of the product. They are justified in reaching the conclusion that the Nivea products are the best on the market amongst deodorants and antiperspirants, the court said.

Deodorants and antiperspirants

According to the court, it is reasonable to assume that the average consumer does not know the difference between a pure deodorant and an antiperspirant. In particular, it is fair to assume that most consumers do not realise that deodorants which do not contain Aluminium Chlorohydrate tend not to leave any marks. Moreover, the average consumer’s perception of a deodorant is that of a body care product which is worn on the armpits to combat body smell.

As the advertisements contain assertions of fact their objective truthfulness can be tested. The fabric samples presented to the court showed white marks and therefore prove that the assertions were incorrect.

As a result, the court concluded that the advertisements are misleading.

Conclusion

The case highlights that a healthy scepticism of product advertising is sometimes advisable. Consumers who spot misleading advertising should make sure they take steps against it.

Kilian Kost joined WILDE BEUGER SOLMECKE as a lawyer in 2009. He specialises in internet law and competition law. In 2013 he became an accredited intellectual property lawyer.

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