Textile labels: "Acryl" unfair, "Cotton" not

Munich Higher Regional Court recently decided that the use of the terms “Acryl” or “Acrylic” in Germany instead of the term “Polyacryl” (in English “acrylic”) unfairly breaches the provisions of the Textile Labelling Regulation, but that the description “Cotton” in place of the official German equivalent “Baumwolle” is not unfair (judgment of 20 October 2016, case no. 6 U 2046/16). It maintained that although, in objective terms, a breach of the rules of the Textile Labelling Regulation existed, use of the word “Cotton” did not infringe competition law because the term is generally known.

Background

The court had to decide during expedited proceedings (preliminary injunction proceedings) whether the terms “Acryl” or “Acrylic” and “Cotton” can be used to label textiles sold in Germany. According to the Textile Labelling Regulation, textiles always have to be labelled with the name of the textile fibres they contain. The labels must be in the official language of the country where the product is being brought onto the market. The terms set down in Annex 1 of the Textile Labelling Regulation are to be used for this purpose. The regional court dealing with the matter at first instance had found that the terms “Acryl” or “Acrylic” and “Cotton” did not meet these requirements and that their use was therefore unfair. It said that the legislator had consciously decided that the textiles had to be labelled in the official language of the Member State where the product is offered.

Decision

Munich Higher Regional Court only partially departed from this viewpoint. Although it confirmed the prohibition on labelling textiles with the terms “Acryl” or “Acrylic”, it said that it was not clear to the public that the fibre known in Germany as “Polyacryl” was meant by these terms. In contrast, the court concluded that although the term “Cotton” objectively breached the Regulation, the breach was not “significant” and so did not lead to a breach of competition rules. It said that the average consumer being addressed would understand the term “Cotton” as being the equivalent of “Baumwolle”.

Assessment

The decision by Munich Higher Regional Court is certainly not obligatory in relation to the term “Cotton”, and in fact gives rise to doubts. After all, the court itself refers to an opposing decision by another civil panel at the same court. In its decision (judgment of 18 February 2016, case no. 29 U 2899/15), a formal breach of the Textile Labelling Regulation was classified as “significant”. The proceedings are currently before the Federal Court of Justice (case no. of renewed application for leave to appeal I ZR 70/16). So it is to be hoped that there will soon be more clarity about whether every breach of the Regulation is unfair and therefore eligible for a warning, or whether the manufacturers and retailers who are required to label their products can claim that a breach was not “significant” in individual cases. Whatever the case, the clear recommendation is to strictly follow the rules on labelling and to use the term “Baumwolle” rather than “Cotton”. Not only the currently unclear legal situation in competition law would support this, but also the provisions regarding fines in the German Textile Labelling Act, under which it is irrelevant whether the breach is “significant”.