The »Clinique« case
The brand »Clinique« belonging to the Estée Lauder group is globally known. This was not always the case in Germany. After the market launch in 1972, the German competition authorities were of the opinion that the term »Clinique« has a clinical or medical connotation (»clinic«) that was likely to mislead consumers.
This was based on the assumption that a not inconsiderable number of consumers would expect that they were purchasing a pharmaceutical product, even though the cosmetic products undisputedly do not have any medicinal properties.
The authorities maintained that this was unfair, and for this reason they stated that cosmetic products could not be marketed under this brand name in the Federal Republic of Germany. As a result, the products were sold in Germany under the brand name »Linique«, whereas they were called »Clinique« on international markets.
This different labelling meant serious financial and logistical restrictions for the manufacturer, because it was necessary to use separate packaging and separate advertising for the Federal Republic of Germany. International goods traffic was also not possible, which meant that production planning for Germany was subject to special restraints.
The manufacturer asked us to solve this very expensive dilemma. Since German competition law at the time had a very low threshold for the assumption that there was a risk of misleading consumers and also was not very open to economic arguments, we therefore brought the case before the European Court of Justice.
In a verdict eagerly anticipated all over the world, this court decided that a prohibition of the name »Clinique« was not in compliance with European law. This meant that the way was then also open for the »Clinique« brand in Germany as well. It is particularly worth noting that the European Court of Justice followed our argument that economic disadvantages such as additional packaging and advertising costs may impede free movement of goods, something which contradicts the fundamental idea of a common market within the European Community. This had never been decided as explicitly as this in the past.
In addition, this judgment also contributed to a change in the definition of the consumer model used in Germany to examine the risk of consumers being misled. It has therefore also become a classic judgment that is frequently still cited today (ECR, judgment of 02.02.1994,
Case C 315/92 (1994), I-317-Clinique).
Rechtsanwalt Mr. Uwe Wellmann will gladly provide you with more information.