Google translate copy&paste:
This is my take:
If there is Over 70% group IV can be identified as Fully Synthetic oil in Germany.
The appeal of the applicant will be amended by 26% of the 33th civil chamber of the Civil Court of Justice Courts of Cologne - 33 O 227/13 - and partially changed and followed as follows: The defendant is condemned to refrain from in the course of business for purposes of competition engine oils with the term "T 504 00, 507 00, 5W-30" as "fully synthetic" and let or, as this happens as shown below: (Image / graphic only in original decision). The costs of the legal dispute, including the appeal, carry the applicant to 20% and the defendant to 80%. This judgment and said judgment of the land court in the society that has received by this judgment is preliminary in the forefront. The respective enforcement debt can turn off the enforcement by security power, if not the enforcement loan is made before the enforcement security. The amount of security is EUR 25,000, for the favorable engine, including the income to the enforcement belief in the amount of the amount to be enforced due to the judgments, for the enforcement belief. The revision is approved. 1 g of the n / a (2) (instead of the facts and reasons of decision according to § 540 (1) ZPO) 3 I. 4 Both parties sell oil and lubricants. They argue whether the defendant may apply their motto oil "N T 504 00-507 00. SAE 5W30" as fully synthetically. 5 engine oils were conveniently won by mineral base oils (API [API [API [PEATROLEUM Institute] Groups I and II), with a motor oil consisting of about 75-80% of base oils and 20-25% of additives. Since the mid-1970s, engine oils have been made on the market, their base oil shares are not made of mineral oil, but simple basic compounds by polymerization and / or esterification (base oil on PAO [polyalphaolefine) base or dicarboxylic acid esters, API groups IV and V). Another group of the fundamental oils form the so-called hydrocracose oils (API Group III). Such a hydrocracose oil is based on the as a solid synthetic designated oil engineering oil. 6 The applicant has the view that the advertising of the defendant is misleading. The engine oil used by the defendant, the hydration-free-handed engine oil should not be applied as "full-synthetic", as traffic under "full-synthetic" does not understand oil from hydrocracking methods, but those with a basic oil, which are almost completely from PAO or dicarboxylic acid esters. The hydrocracking method does not provide a comparable homogeneous end product relative to base oils from PAO or dicarboxylic acid esters. The hydrocracose oils differ from those of PAO-based not only by shorter side chains of the ISO alkanes. While PAO is 100% of paraffins, this proportion is in the first time between HPDR and 77%. The production is also less costly than those of the API group IV / V. Traffic will be deceived by the application as "fully synthetic" on the operation and quality of the engine oil contested here. There were nothing changed to these relationships and the traffic understanding in recent years. 7 The applicant has requested to condemn the defendant to refrain from the fact that the business "oil-ethical," 50-95, 5W 30 "as a" south-synthetic "to apply and / or appropriate engine oils to be used, and unlike the engine, which is not actually a motor oil with a PAO content of at least 70%. 9 The defendant has requested to dismiss the lawsuit. 11 The defendant has the view that a mislegument is therefore a matter of course because it lacks a tangible traffic survey in the audience and the broadcasting circuits with the term "full-synthetic" would not be able to combine. From a referring consumer impact, it could also be out-of-the-course, as such could only be based on legal regulations or requirements of official authorities or competent skills. Even if a concrete idea would exist, the traffic is not interested in the exact chemical composition of an engine oil. Important are the properties relevant for daily use. However, that the benefits of the advertised oil remain at a timely discharged oil during normal operating conditions behind which the engine oils produced based on PAO can not be detected, and could not be proven even if there are no disadvantages. 12 The defendant claims that the quality of the engine oils produced in the hydrocrack method is comparable to those which have been conventionally referred to as full synthetic oils. In the PAO base oil Spectrasyn 6), the kinematic viscosity at a time with two degrees between 5.60 cst and 6.0 cst. The corresponding values of a base oil produced by the SK Corporation in the path of the hydrocrack method are fluctuated between 6.3 cst and 6.7 cst. The defendant has also shown that the HydroCrack oils may be referred to as synthetic, because the hydrocrack process is a procedure in which the art is produced in the end of the art. It is - as in the polymerization - the chemical structure changes and some artificial created. 13 The land court has rejected the action and executed for the consensus, for the consumer, the details of the production of the oil are without interest. For him, the properties are just the result, and so far, it does not determine that hydrocracose oils in the actual use have other properties than oils on PAO-based. It should not be noted that the expectations that were made to a full synthetic engine oil were not fulfilled. Because of the further details, reference is made to the judgment of the Land Court (§ 540 (1) 1 (1) ZPO). 14 With the mutually and in the apparent appeal, the applicant follows itself in its first-time basis. For the only reason, it has been, for the 1970s, fully synthetic engine oils are on the market, which are located in the premium segment and with those of the consumer. It should now be the cause of the defendant that it would also meet these products in these quality. Even if they are controversial in such a way, whether a hydrocracis oil is a "synthetic" oil, be it the cause of the defendant to guide evidence, a hydrocracose oil is "absolutely equivalent". In fact, fully synthetic oils are in preparation and more expensive than the product offered by the defendant. Well-known material engineers would therefore only expand oils with a minimum of 70% as fully synthetically. 15 The applicant requests to be condemned, under the amendment of the country court, the defendant to refrain from the fact that the business is "and / or more" and the following "F / S: -" 505 "00750, 5W 30" as a "solid synthetic" and to be distributed and / or corresponding engine oils, unless it is actually a motor oil with a PAO content of at least 70%, if this happens as follows: 17 [Consequences The following two images shown in the tenor]. 18 The defendant requests to reject the appointment. 20 In the alternative, the defendants request the granting of an application for the period, as it requires a period of five months to sell out stocks. 21 The defendant is apparent, the appointment is insufficient, as the applicant is limited to a short summary of their initial lecture. In the event, she defines the land regular judgment. A misleading of consumers not by the name of the oil sold by their oil as a "solid synthetic". Consumers would not connect concrete imagination with this name. The idea, "full-synthetic" oil is high quality and made positive on the engine, do not lead to a misleading. These properties also manage the oil distributed by it. Already in 1988, the Landgericht Hamburg found that hydrocracose oils are equivalent to pao-based oils. The OLG Düsseldorf, in a later process, has only been labeled merely for the misleading because it does not have to see if it is actually equivalent. In fact, the benefits of the oil percentage of their drives per-operated by normal operating conditions would not be securely left behind the engine oils manufactured based on PAO. This is also confirmed by a report "The Synthetic Texture of Group III", odds in 1999 in Houston. In addition, the defendant has written written explanations of the manufacturers of the BaseUölen of the API Group III (plants B 14 and B 15). 22 An error of mislees can not be assumed under the point of view that the consumer understands the name "fully synthetic", the relevant oil is "completely artificial". In this understanding of the term, it is also to be described as "fully synthetic" as a "single-synthetic", because a product produced in the hydrocrack process is not less fully artificially produced than a PAO product. 23 The fact that "full-synthetic oils" produced in a certain procedure were for the age of 25 for 25 years, also also not appropriate to justify consumer understanding that would be disappointed as "fullysthetically" by the name of its oil. In this case, there is a case of the "referring or ancientic consumer charge" in which a misleed period is only available if there is a positive stress that the addressed circles of association combined with the attached name, the same product is identical to those products sold under the same name. Furthermore, his reference point of the referring consumer impact must be in the form of a legal regulations or requirements of official authorities or competent skills. In the present case, it should not be noted that the final consumers have knowledge of standards / standards in terms of production of full-synthetic engine oils. This is only determined by a traffic survey. In addition, there would be no legal regulations or request from official places to the question of the designation of an engine oil as "fully synthetic". Even specialists or officials would provide no requirements for the quality of the base oil in terms of the name of an oil as "fully synthetic". In this context, the defendant renews on a comment on the "NAD", the "National Advertising Divison", a self-regulation organization of the US advertising industry, which has advertised for an engine oil whose ground oil was obtained by the Hyrocrycher Procedure, as "fully synthetic" did not. 24 The indication "full-synthetic" is unclear in any case. There are no norms standards standards for this term, and also in specialist circle would be different figures if there is a synthetic oil in a hydrocrack oil. A misleading could therefore only be available if the product offered by the defendant is aimed in quality or properties of the conventional ascendiously used "oil-synthetic" oil, but that is not the case. 25 With regard to the applicant's application referred to in the oral negotiation before the Senate on April 8, 2016, the defendant has, meanwhile, further additives are on the market. From the use of a particular additive, therefore, no longer could be reclassified to the composition of the oil distributed by its. 26 II. 27 The permissible vocation also has success in the cause. The applicant is the claim - in the last-increased extent - in accordance with §§ 5 (1) (2) No. 1, 8 (1) and (3) No. 1 UWG. 28 1. The appeal is permitted, in particular, sufficient appeal is preceded. According to § 520 (3) No 2 ZPO, the appointment must be the circumstances that, according to the appeal, the right of violation and their significance for the contested decision is given. This includes a discretion out of which, which combines certain points of the judgment of the appeal and the reasons he opposes them to them. The presentation must be tailored to the dispute (BGH, NJW-RR 2007, 1363; NJW-RR 2008, 1308; NJW-RR 2015, 1532 f.). These requirements are sufficient for the applicant's letter of reference to the first sentence of 1,14,1005. It makes sufficiently clear that the applicant - unlike the country court - the name of the motto oil of the defendants as "fully synthetic" is misleading, since a product containing hydrocracose oil does not fall under this designation. 29 2. a) In the past, the applicant has made the fact that the product of the defendants fulfill a certain specification of the Volkswagen Group, that it must have hydrocracose oils. The additive that this specification prepares, thus emphasizes a high proportion of these oils. After the defendant has pointed out that other additives can also meet this specification, the applicant has reasonably appreciated that the defendant is open to whether they use hydrocracose oils. If this is the case, the challenged advertising violates § 5 UWG. The defendant has considered this lecture of the applicant as an undearable, since it was not their task that reveal the components of their product. The offer of a promotional representation is an impunity to be inadmissible. Excellent in the oral negotiation before the Arrangement Court on 19 August 2014, the defendant declared that their oil is a pair content of 20%. 30 On this basis, the country court in the event of the contested decision has expressly been found to be disclosed as a result of the fact that the hydrogencral oil referred to as the solid synthetic oil is underlying a hydrocrack oil. Since no deferred capital notice has been put on the part of the defendant, this finding for the appeal procedure is binding (BGH, NJW 2001, 448, 449; OLG Karlsruhe, NJW-RR 2003, 891, 892). The fact that the defendant now has their own - possibly, a definitive claim of this content of the Senate to not reflect the written number of May 13, 2016 - in the same way, is inevitable. The repetition risk required for the submission claim is indicated by the infringement; Also, by the factual termination of the competitive behavior, it is not basically (Bornkamm, in: Köhler / Brenkamm, UWG, 34. Absent. 2016, § 8 R. 1.39 ff. m. w. n.). The fact that the defendant has applied their engine oil as well as in the composition, as registered with the urgent findings of the country arrest, as it corresponds to the enters into the tenor, does not place them in demand. 31 It would have been commanded, after the defendant split in the absence of the usual disclosures first, under the name "N T 504 00 - 507 00", has a hydrocrack oil as a full-synthetic oil, but now under the same name a traditional full-synthetic oil based on oils of the API groups IV and V, this should also expressly support. The mere indication of the (theoretical) possibility of a changed product composition is not sufficient in that regard (§ 138 (1) and 2 ZPO). Moreover, the additive of Jam International Ltd., which the defendant is concealed in the first time in May 1, 2016, is not newly: It has already mentioned it in their master resolution of 19 March 2014 (p. 3 = Bl. 62 d. A.). 32 b) the designation of an engine oil without further explanation as "fully synthetic", when it actually contains a substantial proportion of hydrocracose oil (API Group III), is to be assumed as misleading without the fact that it is concerned with the specific characteristics of this product. The Senate is closing in the opinion of the evaluation of the Human Rural Hang (WRP 1989, 667, by this decision is the overseasized cruise in the LG Hamburg of 22. 12888) and Düsseldorf (U.T. 22. 1. 2008, 20 U 46/05 - Juris), both of which have the name of an engine oil based on hydrocracoges as (full) synthetically as misleading. 33 According to the usual and unresponsive findings of the land court, since the mid-1970s, oils are on the market, their base oil proportion does not consist of mineral oil (API groups I and II), but of oils of the API groups IV and V. As a result of the expensive production process of the "synthetic" oils, these products are located in the upper price segment. Therefore, there is a misleging, if now oils won in another production process are sold underground designated by the market. 34 A - relevant - misleading is provided if there is a compliance with the goods offered by a particularly significant part of the praised circular circuits and to increase the market slowing to be a competent in the competent (more KMHler / Brenkamm, UWG, 34. Für 2016, § 5 R. 2.169 m. W. N.). It can be found that the grouped group of tranquences combine "full-synthetic oil" a special quality that justifies the higher price. It is also true that the consumer combines no specific performances with the name "fully synthetic". It is at least expected to be a "artificially produced" oil that is therefore naturally won (mineral) oil benefits (OLG Düsseldorf, URT. V. 22. 1. 2008 - 20 U 46/05 - Juris Tz. 22 f.). The defendant must be in question when it comes to the fact that if the meaning "full-synthetic" does not want to keep any concrete ideas in the name, instead of informing the consumer that it is its product to the conventional full-synthetic oils for a new development. 35 This statement of traffic understanding can meet the Senate, the members of the addressed traffic circuits, from their own speech credentials, so that it does not require the elimination of an expertise assessment. If the crucial judges themselves are among the addressed traffic circuits, it is generally not any of the opinion polluting undergraduate expertise to determine the understanding of traffic. This applies regardless of whether the court may, in the concrete case, may afford or neglect a misleguing due to its own reporting (BGHz 156, 250 = Grur 2004, 244, 245 - market leadership). The - time - foregoing decision of the Senate, which the defendant occupation (WRP 1995, 48 FF. - Highway) concerned a special case in which the traffic understanding of the expression "highway", which has not been made from the local applicant, does not even covered the termination of the subject-matter of a corresponding to the terminology (a. A. p. 53). In other context, the Senate has also seen it at the time of setting the traffic understanding of the expression "highway" from its own speech category (Senate, LRE 26, 100 FF. = Juris (LS)). 36 The situation-awareness of the situation-specific and average information provided considers may therefore expect the engine oil to be used as a "solid synthetic" that the company has been afforded to him in the market so far. Whether he is right or wrongly essential for the most accurately attributed to the product of the product, is basically unrealized (OLG Düsseldorf, a. A.. TZ. 30). It is a significant that the traffic keeps you for purchasing and his business decision to you. For example, it is misleading, to produce products not produced in Germany as "Made in Germany", even if the advertised products have no qualitative difference to currency products manufactured in Germany (see Senate, WRP 2014, 1082, 1084 f. Verwatches powder). Likewise, it would be misleading to apply food as "genetic engineering" if in fact producing alterated feeds have already been used, even if the food is identical to those in which no genetically modified feeds have been used. In this case, in the case, the consumer will have a vague idea of how the use of genetically engineered feeds on the end product (see OLG Cologne, Grur-RR 2005, 363, 366 ff.); Nevertheless, it is a circumstance that will take into account a significant part of the consumers accepted in its purchase decision. 37 The falling-in case of the "Referring consumer premium" (the consumer does not make any concrete ideas, but it is based on a product compliant with the requirements of certain specialists; on the other hand, in the present case is not relevant. The case-law cited by the defenders in this context is therefore not decisive for the question to be judged. Here is a certain consumer understanding co-consistent consistent, which is a "full-synthetic" oil. Now, the defendant offers an oil as a "solid synthetic", which in particular skills in the counterparts, whether this product actually is a "full-synthetic" product. Against this background, the original reference of the land court was decided on the declaration of 9. September 2014 on advertising with professional contributions, including the commentary of Bornkamm (Köhler / Brenkamm, UWG, 34. Absent. 2016, § 5 R. 3.26): "The advertiser must be used in such a case, that it must be appropriate about scientific findings. It is not sufficient that he is only in the process of a statement of experts from which the claimed action is to give '(a a. O.). 38 Therefore, the application of the defendant's product is also permitted as a "full-synthetic" oil because it is contemplated in the fields of whether the hydro-acrocognises of the API group III are "synthetic" oils or not (see OLG Düsseldorf, a. A. ..Z 28. This has also expressly granted the defendant, the font of 26 May 2014, p. 3 = B. 110 d. A.). On the contrary: For more ambiguous statements, the advertising must have the unfavorable design against consideration. He must not escape with regard to their own, unclear of the responsibility (BGH, WRP 2012, 1216 = Grur 2012, 1053 cm. 17 - Market leader Sport, Senate, WRP 2012, 984 = Grur-RR 2012, 288, 289 - Professional Prosecutors in the Letter Head, Köhler, in: Köhler / Brenkamm, UWG, 34. Absent. 2016, § 5 Rn. 2,100). Accordingly, if the range of a term is deprived of the advertiser, the advertiser does not readily use the term for him to be a favorable understanding of the term. 39 The defendant has not been concretely stated that the traffic understanding in the time, which has passed in particular since the decision of the OLG Düsseldorf, has changed. This could only be the case if, for example, engine oils have been established on the basis of hydrocracoges as "fully synthetic" oils on the market. The Landing Court adopted the defendant in the Decision of 9. 9. 2014, to contribute to what extent the technical assessment has changed in the opinion of the OLG Dusseldorf in 2008; Corresponding lecture is not done. The defendant has expressly been granted that the classification of hydrocracoges as a synthetic oils in contemporaries is still controversial (vocational reservation of 2 November 2014, p. 4 = BL. 243 d. A.). 40 The decision of a US self-regulation organization of the advertising industry to be used by a "oil synthetic" for the German understanding of the application of an engine oil as a "south-synthetic" without receipt. It is also striking that the decision presented in Translation as Annex B 10 is in detail with the characteristics of the oils, but hardly the understanding of the (US) consumers of the adhering advertising statements. Contrary to the view of the defendants, there is no violation of Community law in a prohibition of the application of their oil, since not the distribution of their oil is prohibited, but only its (due to the understanding of German consumers) is misleading application. The prohibition of irrelation can be based on Community law (Directive on Unlawter Business Participations 2005/29 / EC). 41 3. Claise is that the applicant can not generally prohibit the defendant's name of their product as "fully synthetic". It is the defendant to be used to continue the name when it considers consumers in a suitably clarifying that this "full-synthetic" oil is an oil that has been made with another method than the full-synthetic oils known to the consumer. The original application claim was therefore too far and to reduce a concrete injury form in which an application is done without such a reconnaissance. This is done in the Internet pages whose expression has been displayed in the tenor: 42 (image / graphic only in original decision) 43 (enlarged cutout from the plant B 1). 44 The partial clearing acceptance that is in the modified application, which has agreed to the defendant concluded by unreasonably inserted into the following written procedure, the Senate assessed by a 20% share value of a contract. 45 4. Against this background, the granting of a friction period was not required. The defendant is not prohibited from the distribution of their products, but only their misleading name and application. 46 5. The cost decision is based on §§ 91, 269 (3) ZPO. The decision on the provisional enforceability is based on §§ 708 No. 10, 711 ZPO. 47 In view of the basic importance of the matter for the affected industry, the Senate has admitted to the revision. 48 6. The letter of the defendant received from the JUNITY OF JUNE 2016, which is received by the deadline for the submission of writing, is not a reason for the devaluation.
