Misleading health-related advertising for a medical product
OLG Hamm, judgment of 21.4.2022, 4 U 39/22 - Misleading health-related advertising for a medical product
The so-called "strict principle" is applied to protect consumers not only in the case of health-related advertising for pharmaceutical products, but also when medical products which only have a physical effect and are not absorbed by the body (here: a wound dressing for absorbing and binding wound exudate) are advertised as having healing effects (following OLG Frankfurt, judgment of 2.12.2021 - 6 U 121/20, GRUR 2022, 581 - Healing earth for detoxification).
The decisive factor for the question of whether the advertising claims contain health-related effect claims is the understanding of the averagely informed, attentive and reasonable advertising addressee (following BGH, judgment of 5.11.2020 - I ZR 204/19, GRUR 2021, 513 - Sinupret).
If the addressees of the advertising statements belong to different circles (here: medical professionals, but also the general public), misleading one of these circles is sufficient (following BGH, decision of February 11, 2010 - I ZR 154/08, WRP 2010, 759 - Bundesdruckerei and judgment of October 2, 2003 - I ZR 150/01, GRUR 2004, 244 - Marktführerschaft).
The scope of application to infected wounds and with references to clinical studies as well as the term inflammation was misleading and violated the advertising guidelines for medical devices, as not only professionals but also the general public were addressed.