Competition law

In Germany, there is no obligation to label products as “Made in Germany”. However, if this labeling is used, it must be ensured that this claim is true. If this were not the case, there would be a violation of the “Madrid Agreement for the Suppression of False Indications of Origin” on the one hand, and of the Unfair Competition Act (UWG) on the other. A violation of § 5 in connection with § 3 UWG leads to a misleading of the consumer. Many consumers associate “Made in Germany” with a high quality standard, innovation or creativity. Misuse of this term can lead to conflicts under competition law.

In the case of foreign partial production, the last essential and economically justified treatment or processing, the treatment that establishes quality, must be carried out in Germany. The authoritative decision of the Federal Court of Justice from 1973 (AZ: I ZR 33/72 of 23.03.1973), which is still valid, states: “From a German product … regularly … expected to be manufactured by a company in Germany…. The decisive factor is that the characteristics or components of the product that constitute its value in the eyes of the public are based on a German performance.”

The Federal Ministry of Justice (BMJ) also confirms: “The limit of use is, according to § 5 UWG, the possible misleading of the consumer. The use of the designation “Made in Germany” is generally not misleading if, on the one hand, the final production of the product has taken place in Germany. In addition, the essential services, which are decisive for those characteristics of the product, which are in the foreground for the appreciation of the traffic, must have been rendered in Germany (OLG Stuttgart, NJWE Wettbewerbsrecht 1996 p. 53, 54 with further references; most recently LG Stuttgart, WRP 2004, 130 [headnote]; Baumbach/Hefermehl-Bornkamm, UWG, § 5-4.83 f.).” [1]

In the case of products for which origin marking is not mandatory, the admissibility of the designation of origin in worldwide distribution is generally governed by the regulations of the country indicated. They are generally recognized by the importing country.

When examining the requirements of the “Made in Germany” term, it would also be helpful to answer the following questions [2]:

• Which characteristics or components of the goods are value-determining?
• Are these value-determining characteristics based on a German performance?
• Does the German or foreign origin of the goods influence the purchase considerations?

Surveys continue to show that the indication of the designation of origin “Made in Germany” influences the purchase decision. [3]

[1]: Letter of the BMJ to the Bundesverband Schmuck, Uhren, Silberwaren und verwandte Industrien e. V. (German Association of Jewellery, Watches, Silverware and Supplying Industry) on the subject of “Admissibility of the use of the designation “Made in Germany”” dated January 3, 2005.

[2]: Cf. Marc Bauer, Stuttgart Chamber of Industry and Commerce, “Made in Germany”, IHK-Magazin Wirtschaft No. 04/2003; see also OLG Stuttgart, NJWE Wettbewerbsrecht, 1996, p. 53f.

[3]: Cf. BCG Web Survey among MBA students, February 2004, in: BCG, “Germany – a change of perspective”, September 2004.

Customs law

The topic can also be assessed from the point of view of customs law. The Customs Code provides information on this.

Article 24 of the Customs Code (non-preferential origin):

“A product in the manufacture of which two or more countries have been involved shall be considered as originating in the country in which it has undergone the last substantial and economically justified processing or working carried out in an undertaking equipped for that purpose and resulting in the manufacture of a new product or representing a significant stage of manufacture.”

Thus, there are four requirements for obtaining German origin:

1. the working or processing of the goods must be carried out in an enterprise set up for this purpose in the Federal Republic of Germany;
2. it must be economically justified
3. it must be (also) the last substantial processing or working
4. it must lead to a new result or represent a significant manufacturing stage.

In the case of so-called “minimal operations”, originating status within the meaning of the Customs Code (Article 24) cannot be conferred. A minimal treatment exists if the working or processing of the goods includes, for example, only the following operations:

• Washing, cleaning, removal of dust, oxide, oil, paint or other coatings;
• simple painting or polishing;
• simple filling into cases, boxes, … As well as all other simple packaging operations;
• affixing or printing of marks, labels, logos or other similar distinguishing signs on the products themselves or on their enclosures;

The above-mentioned working or processing is considered insufficient and thus does not meet the requirements for obtaining German origin.