Case law

  • Case Details
    • National ID: 4 Ob 228/10y
    • Member State: Austria
    • Common Name:link
    • Decision type: Supreme court decision
    • Decision date: 15/02/2011
    • Court: Austrian Supreme Court, Vienna
    • Subject:
    • Plaintiff: N/A
    • Defendant: N/A
    • Keywords: false impression, labelling, product characteristics
  • Directive Articles
    Unfair Commercial Practices Directive, Chapter 2, Article 5, 2., (b) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1., (b)
  • Headnote
    The overall impression of a certain product is the relevant starting point as to determine whether the packing of a product can be considered misleading.

  • Facts
    The defendant produced fruit bars titled "Fruit Snack Forest Berries" which were wrapped in a foil that showed a variety of whole berries.

    On the backside of the bar a list of ingredients informed that the bar actually was mainly made of dried apple powder, apricots and almonds and that there neither were whole nor cut berries in the bar.

    Only a syrup of the fruits was added in order to achieve the particular fruit flavour. In comparison to the whole 40g bar, the part that came from the syrup only made up an approximate 2,6% of the whole bar. Also compared to the whole bar, the amount of berries needed in order to make the necessary amount of syrup was approximately 25%.

    According to the plaintiff, this commercial practice, i.e. creating the impression that the fruit bar was made of berries, is a misleading commercial practice.

  • Legal issue
    The court of first instance granted the request, the second instance court dismissed it.

    The Supreme Court held that a commercial practice's ability to mislead, such as the aforementioned product packing, has to be assessed on the basis of the overall impression made by the product or practice at stake. This overall impression, however, has to be differentiated from the overall content of the commercial practice, as each piece of the announcement which is particularly set on the spot may provide a crucial element for the addressed consumers' decision to consume a product or not. If this is the case, also the particular piece of the announcement may not be misleading. Only a sufficient distinct information may prevent a misleading ability. Generally, according to the UCP Directive the addressee of commercial practices is a reasonable and mature consumer.

    After these considerations, the Supreme Court held that if the addressee of a certain commercial practice does not have any idea about the composition or nature of the product, the addressee cannot be misled in any way.
  • Decision

    Under which circumstances can a product packing be considered misleading?

    Full text: Full text

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  • Result
    The wrapping was found to be not misleading and the plaintiff's request was denied.