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Success at ECJ and German Federal Court of Justice (BGH): Images of cigarette packaging on product selection buttons must show statutory warnings

After two referrals to the ECJ and two preliminary rulings (ECJ, GRUR 2022, 93 – Pro Rauchfrei I; ECJ, GRUR 2023, 501 – Pro Rauchfrei II), we were successful for our client, the non-smokers’ association Pro Rauchfrei e.V., at the BGH: Upon our application, the opposing party, an operator of several supermarkets, was prohibited from offering tobacco products, namely cigarettes, for sale in the course of trade in such a way that images of the packaging without health warnings are presented instead of the product packaging. Specifically, the case concerned the offer and sale of cigarette packs that were offered in closed vending machines in the checkout area for the purpose of protecting minors and preventing theft. The selection buttons on the vending machine were modelled on cigarette packaging in terms of their shape and design (with the respective brand), but these images did not contain the statutory warning required for cigarette packaging. Following our auxiliary request, the BGH – after a corresponding referral to the ECJ – found that the public sees these selection buttons as a reduced representation of the cigarette packaging and that the obligation to include health warnings in accordance with Sections 11 (2), 12 f of the Tobacco Products Regulation applies to them (BGH, judgement of 26 October 2023, I ZR 176/19 – Zigarettenausgabeautomat III).