Labeling requirement for electrical devices
On 25 July 2019, the Higher Regional Court of Frankfurt am Main ruled in summary proceedings (Case No.: 6 U 51/19) on the extent to which a failure to comply with labeling requirements in accordance with Act on the Marketing, Withdrawal and Eco-Friendly Disposal of Electrical and Electronic Devices (the Electronics Act) constitutes a rule of market behavior subject to desistance claims in terms of the Act Against Unfair Competition.
In the present case, the parties' dispute involves the labeling requirement in accordance with § 9(2) of the Electronics Act, and specifically labeling in accordance with Annex 3 to the Electronics Act: a picture of a wheeled garbage can with an X through it. This symbol is to be affixed in a visible, identifiable and permanent manner.
The parties sell lamps and light bulbs online. The petitioner bought a table lamp manufactured by the respondent in a test purchase on 14 February 2019. The lamp in question did not have the symbol of a garbage can with an X through it, as required in accordance with § 9(2) of the Electronics Act. As a result, the petitioner sent the respondent a cease-and-desist letter.
The petitioner asked the Higher Regional Court of Frankfurt am Main to overturn a previous judgment by the District Court of Darmstadt (2 February 2019, Case No. 12 O 19/19) and order the respondent, under penalty of law, to refrain from marketing lamps for which the legally required symbols in terms of § 9(2) of the Electronics Act in conjunction with Annex 3, pursuant to DIN EN 50419, are not affixed on the consumer product itself, as was the case for the table lamp. The respondent asked the court to dismiss the appeal.
Competitive violation through absence of labeling
It was first necessary for the court to clarify, relatively at length, whether the provisions of the Electronics Act even constitute rules of market behavior which are subject to desistance claims. This point was disputed at first because, historically, the Electronics Act has been a statute which primarily serves purposes of waste management (cf. § 1 of the Electronics Act), which is why the District Court of Darmstadt denied the claim - unjustly, as the Higher Regional Court went on to rule. A provision constitutes a rule of market behavior in terms of § 3a of the Act Against Unfair Competition if its purpose is (at least in part) to protect the interests of market participants. Effective 20 October 2015, the following sentence was added to § 1 of the Electronics Act, which describes the purpose of the statute: "In order to achieve these waste management goals, the Act is to regulate the market behavior of the obligors." This sentence clarifies the matter.
With that question settled, the elements of a desistance claim for market participants in accordance with §§ 8(1), 3 and 3a of the Act Against Unfair Competition are met relatively easily. Moreover, the respondent was unable to invoke the exceptional rule in § 9(2) Sentence 2 of the Electronics Act, according to which the symbol can be printed on the packaging, the instructions for use or the warranty certificate instead of on the device itself, if this is necessary due to the size or function of the electrical device. The respondent's instructions for use do contain the symbol. However, the element of necessity is missing: the symbol could easily have been placed on the underside of the lamp without any functional impairment. As a result, the petition for a temporary injunction was granted.
Pursuant to § 9 of the Electronics Act, the labeling must be permanent. One way to check is the "rub test," which is performed by rubbing the symbol for 15 seconds with water and paint thinner, two times. If the sticker is still legible with no creases and cannot simply be removed, the label has passed the test and is considered permanent.
The absence of labeling might also indicate that the manufacturer has failed to comply with its registration requirements in accordance with § 6(2) of the Electronics Act. This would have consequences for the retailer as the latter may be required to carry out inspections and selling the product may cause the retailer to qualify as a quasi-manufacturer. As a result, the retailer might have violated a rule of market behavior itself, and would also be required to register the product.