At the end of 2018, the Stuttgart Court of Appeals [Oberlandesgericht] clarified that, pursuant to Regulation (EU) No. 1007/2011 on textile fibre names and related labelling and marking of the fibre composition of textile products (hereinafter: the Textile Regulation), in Germany the components of a textile product must be indicated in German. The use of English terms not taken on in the German language (in this case “SHELL” for the outer layer and “INSERT” for an inset of a running cap) was a violation of art. 16 of the Textile Regulation) and unfair under sec. 5a of the German Act Against Unfair Competition [Gesetz gegen den unlauteren Wettbewerb – UWG].

The case

The Defendant offered a running cap on sales platforms, indicating the following textile fibre composition:

“SHELL: 100% POLYESTER; WINDSTOPPER@MEMBRANE: 100% POLYESTER; INSERT: 88% NYLON; 12% ELASTANE”

The Plaintiff complained among other things that the use of the English terms “SHELL” (meaning the outer layer) and “INSERT” (meaning the inside) to indicate the textile components of the running cap violates art. 16 of the Textile Regulation and was therefore unfair in the sense of the UWG, in particular under sec. 5a UWG.

The District Court [Landgericht] of Stuttgart upheld the complaint and ordered the Defendant to cease and desist as moved. The Defendant objected to this with its appeal.

The decision

The Stuttgart Court of Appeals confirmed the decision of the District Court of Stuttgart.

The Stuttgart Court of Appeals stated that, even though the wording of the Textile Regulation (art. 16(1) sentence 2, (3)) only requires that the descriptions of textile fibre compositions (referred to in articles 5, 7, 8 and 9 of the Textile Regulation) shall be clearly visible in German before the electronic purchase and does not refer explicitly to art. 11 of the Regulation (which governs the marking and labelling of textile components), ultimately art. 11 of the Textile Regulation merely further develops art. 9 of the Textile Regulation.

Hence, the court was of the view that, by way of the reference to art. 9 and art. 16 of the Textile Regulation, the requirements of art. 11 of the Textile Regulation – i.e. on the labelling of the textile components and their textile fibre contents – must therefore also be considered in the context of art. 16 of the Regulation. The court went on to state that, for this reason, the labelling of textile components and their textile fibre contents should also be clearly visible in German before the electronic purchase.

According to the court, the Defendant therefore violated art. 16(3) of the Textile Regulation because it used the English terms “SHELL” and “INSERT” when indicating the textile components of the running cap. The court stated that, in particular, the words “SHELL” and “INSERT” were not terms that had been adopted into the German language. It was of the view that, unlike for example the term “cotton” (see here for an account of the relevant case in German), the meaning of the words “SHELL” and “INSERT” are not readily familiar to consumers in Germany. According to the court, the violation of art. 16(3) of the Textile Regulation was also unfair under sec. 5a (2), (4) UWG because, by using English terms for the textile components, the Defendant withheld information important for the consumer’s purchase decision, or, in any event, that it provided information in a manner not clear or easily understandable.

Conclusion

The judgment of the Stuttgart Court of Appeals illustrates the risks that are involved when English terms are used to fulfil the requirements of the Textile Regulation in Germany: German legislators have provided that information required pursuant to the Textile Regulation must be provided in German. In principle therefore, English terms can only be considered to fulfil the requirements of the Textile Regulation if it can be assumed that they are used in the German language and adopted by it. However, it will often be difficult to furnish suitable evidence for this.

The judgment of the Stuttgart Court of Appeals (which has in the meantime become final) is thus the latest in a series of court decisions that set a strict standard regarding the fulfilment of the requirements of the Textile Regulation (see, for example, in relation to the use of the term “merino wool” the decision of the Hamm Court of Appeals here).

In this respect, it is not surprising that the Stuttgart Court of Appeals, in its judgment of 18 October 2018, also decided that the Defendant had used impermissible textile fibre compositions: The Stuttgart Court of Appeals judged the use of the English term “ELASTANE” for the textile fibre composition of the insert of the running cap to constitute a violation of art. 16(1) of the Textile Regulation because the list of permitted textile fibre names in the German version of Annex I of the Textile Regulation only includes the (German) term “Elasthan”. In addition, the Plaintiff complained in its lawsuit that the Defendant had used the indication “Polyamid mit Polyurethan” (=”polyamide with polyurethane”) for the textile fibre composition of bicycle gloves. The Stuttgart Court of Appeals held that this indication was not permitted either for the reason alone that the consumers could wrongly conclude from the use of the preposition “with” (“mit“) that the textile fibre in question was a combined textile fibre, the indication of which would violate art. 16(1) of the Textile Regulation in conjunction with Annex I of this Regulation.

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