Frankfurt’s higher regional court – the Oberlandesgericht (OLG) Frankfurt – has ruled that the use of the term “center” in connection with a medical practice staffed by only two doctors is not misleading to consumers and does not infringe competition law.
Violations of competition law can potentially give rise to formal warnings and claims for damages, and there is often a fine line between what is considered legal and illegal, notes commercial law firm MTR Legal Rechtsanwälte. Companies, contractors, and entrepreneurs can address any questions or concerns they may have to a lawyer who specializes in competition law.
One of the foundations of competition law in Germany is the German Unfair Competition Act (UWG), Section 5(1) of which states that a person is deemed to have acted unfairly – which is to say, unlawfully – if they have engaged in a misleading commercial practice that is liable to lead consumers or other market participants to make a transactional decision which they would not otherwise have made. Those who find themselves confronted with violations of competition law can consult a qualified attorney.
The defendant in the case in question, a joint medical practice consisting of two doctors, was referring to itself as a “center for aesthetic plastic surgery”. The plaintiff, a doctor running a plastic surgery practice, took issue with the term “center” in reference to just two doctors, finding its use in this context to be misleading.
This view was not shared by the OLG Frankfurt, which held that the advertising was not misleading. The key factor, according to the court, was how the advertising is perceived by its target consumer audience, with the general expectation being that a center’s structure both in terms of staff and how it is organized goes beyond that of your average comparable business. However, it was also observed that in the medical field the term “center” does not indicate a particular size.
Indeed, there are a wide variety of medical centers nowadays that in many instances clearly do not confirm to any particular size requirements. The OLG Frankfurt went on to state that the public has become accustomed to this and does not expect medical centers to have a minimum number of doctors.
But this does not mean that different expectations and requirements do not apply to other sectors. When in doubt, it is always a good idea to consult a lawyer specializing in competition law. An experienced attorney will know what to do if warning notices have already been issued. They will also be able to devise the best approach in response to injunctions suits and claims for damages.
MTR Legal Rechtsanwälte’s practice includes antitrust and competition law.
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