Deception through manufacture in China despite Swiss cross

Deception through manufacture in China despite Swiss cross

The ‘real’ supermarket chain sold pieces of luggage from the well-known traditional Swiss company Wenger S.A. Wenger is, along with Victorinox, the manufacturer of the famous Swiss Army Knife and is now part of Victorinox. Like the Wenger pocket knives, the luggage also displayed the typical Wenger cross, which is very similar to the Swiss cross:


However, Wenger’s luggage was manufactured not in Switzerland but in China, a fact that was not clear from the labels on the luggage.

The Hamburg Regional Court prohibited the distribution of the luggage by way of a temporary injunction. The injunction was based on an argument that, according to the perception of the German public, the emblem indicated that the trolleys, bags and backpacks were manufactured in Switzerland. In fact, the luggage was made in China. The Wenger cross therefore falsely created high expectations in terms of the Swiss quality and reliability of the luggage.

In a very carefully reasoned decision, however, the Hamburg Higher Regional Court (OLG) revoked this temporary injunction in a case represented by the author of this article. According to that judgment, the Swiss cross on luggage does not mislead the average German consumer as to the place of production being Switzerland. The average consumer in Germany knows that nowadays luggage is produced in the cheapest place in the world. In addition, items of luggage do not require exceptional Swiss manufacturing expertise. Nor do they require short transport routes, as is the case with certain Swiss food specialities. Moreover, the relatively low price of the case also meant that production in Switzerland could not necessarily be expected.    

The average consumer therefore perceives the Wenger cross on luggage as part of the Wenger company logo. The cross refers to Wenger S.A. and its headquarters in Switzerland, but not to the country of manufacture of the goods.

In addition, the absence of any labelling on the luggage indicating ‘made in China’ or ‘made in PRC’ did not lead to the deception of customers in Germany. Where the luggage was manufactured was not relevant; it is possible to manufacture the items in China to the same quality standards as in Switzerland, Hamburg Higher Regional Court, 05 December 2019, 5 U 44/19.

Learnings: If you want to sell products that are branded with a symbol similar to the Swiss cross, you must carefully analyse the type of product to which it is being applied. A cross on items of luggage may be judged differently from that on the packaging of watches or food. Examination should also be undertaken as to whether the consumer, through the cross symbol, could be deceived only about the place of production or whether other expectations may also be influenced, such as the quality of the goods. The OLG Hamburg answered this question only in relation to the deception about the place of production in the case of luggage originating from a Swiss company. Nor did it decide whether the Swiss Cross itself was injured. Your project would therefore require a careful analysis in order to avoid risking the costly failure of the project, even the ruin of a business.

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