The matter at hand

Nelsons markets preparations made from flowers, known as ‘Bach flower remedies’, in pharmacies in Germany. Before 1 January 2005, Nelsons marketed the preparations in Germany as medicinal products, under the EU trade mark RESCUE, which was, at that time, registered for medicinal products. In 2007, Nelsons also obtained a registration for the EU trade mark RESCUE for foodstuffs. The Higher Regional Court in Hamburg held, by its judgment of 21 February 2008, that Bach flower remedies are not medicinal products, but foodstuffs. Following that judgment, Nelsons, which was not a party to the dispute in that case, began marketing the remedies not as medicinal products, but as foodstuffs, without making any changes to them.

Ayonnax Nutripharm and Bachblütentreff, which also market Bach flower remedies in Germany, have challenged some of Nelsons’ advertising messages and the way in which it has presented the remedies on the German market. Those companies claim that Nelsons has advertised alcoholic beverages by relying on effects that are beneficial, or in no way detrimental, to health, which constitutes an act of unfair competition.

According to the referring court in Germany, the designations ‘RESCUE TROPFEN’ and ‘RESCUE NIGHT SPRAY’ used by Nelsons for its Bach flower remedies are health claims within the meaning of the Nutrition and Health Claims RegulationRegulation No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers, because the word ‘RESCUE’ suggests to the consumers concerned that the use of the remedies is recommended so they can be ‘rescued’ when facing certain health problems. However, as the referring court in Germany had doubts as to the applicability of the Nutrition and Health Claims RegulationRegulation No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers, it decided to ask the ECJ inter alia whether the transitional measure of Article 28(2) of the Nutrition and Health Claims RegulationRegulation No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers applies where a product was marketed before 1 January 2005, not as a foodstuff, but as a medicinal product, so that the provisions of that Regulation are not applicable to the remedies during the transitional period laid down in that provision.

The judgment of the ECJ

First of all, the ECJ establishes that “[A]ccording to Article 28(2) of [the Nutrition and Health Claims RegulationRegulation No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers], products bearing trade marks or brand names existing before 1 January 2005 which do not comply with that regulation may continue to be marketed until 19 January 2022, after which time the provisions of that regulation will apply” (paragraph 29).

According to the ECJ, “[T}hat provision is thus a transitional measure derogating from Article 1(3) of [the Nutrition and Health Claims RegulationRegulation No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers], according to which a trade mark, brand name or fancy name appearing in the labelling, presentation or advertising of a food which may be construed as a nutrition or health claim may be used without undergoing the authorisation procedures provided for in this regulation, provided that it is accompanied by a related nutrition or health claim in that labelling, presentation or advertising which complies with the provisions of the regulation” (paragraph 30).

Furthermore, the ECJ holds that Article 28(2) of the Nutrition and Health Claims RegulationRegulation No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers “is applicable only to products bearing a trade mark or brand name ‘existing’ before 1 January 2005” (paragraph 46).

The ECJ continues by stating that the wording ‘existing’ “must be understood as meaning that those products had, already before that date, to have the same substantive characteristics and bear the same trade mark or brand name” and that it is clear that such is the case in the main proceedings (paragraph 47).

Consequently, the ECJ concludes that “Article 28(2) [of the Nutrition and Health Claims RegulationRegulation No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers] must be interpreted as meaning that that provision applies in the situation in which a foodstuff bearing a trade mark or brand name was, before 1 January 2005, marketed as a medicinal product and then, while having the same physical characteristics and bearing the same trade mark or brand name, as a foodstuff prior to that date” (paragraph 48).