Advertisement Law and Brand Protection in the Cannabis Field in Germany
Margret Knitter and Julia Posch, of SKW Schwarz, discuss the regulation of advertising and intellectual property protection in relation to cannabis and associated products in Germany and the EU.
Since 2017, cannabis has been permitted in Germany for medical purposes. Currently, the supply agreements for medical cannabis concluded with the Cannabis Agency of the Federal Institute for Drugs and Medical Devices (BfArM) are limited to 2.6 tonnes per year. This quantity does not cover the medical demand in Germany. The German market for medical cannabis will depend on imports for the foreseeable future, as licensed domestic production is relatively low.
In the coalition agreement, the federal government agreed to legalise the recreational use of cannabis in the current legislation period. The German Cannabis Association (Deutscher Hanfverband) expects the market to grow quickly and anticipates a demand of 400 tonnes per year. This corresponds to a turnover of up to EUR2.5 million.
The advertisement of cannabis and products containing cannabis or cannabidiol (CBD) is subject to several restrictions. The restrictions that apply depend on whether the respective products are classified as medicinal products, food or cosmetics.
The provisions of the German Act against Unfair Competition (Gesetz gegen den unlauteren Wettbewerb – UWG) apply to all advertising of products containing CBD, regardless of how these products are to be legally classified. Misleading advertising is prohibited by this provision. A commercial practice will be regarded as misleading if, for example, it contains false statements or other information suited to deception regarding the main characteristics of the goods or services, such as their nature, benefits, risks or composition.
The German Health Services and Products Advertising Act (Heilmittelwerbegesetz – HWG), applies if the advertising claim for the CBD product relates to the detection, elimination or alleviation of diseases, ailments, bodily injuries or pathological complaints. Accordingly, misleading information exists in particular if:
- therapeutic efficacy or effects are attributed to the products, and the products do not have such efficacy or effects; and
- the false impression is created that success can be expected with certainty or that no harmful effects occur when the product is used as intended or over a longer period of time.
“Claiming that a CBD product may be beneficial for your health will not be permitted”.
Medical cannabis may not be purchased directly by consumers as it is classified as a narcotic and is available only with a special prescription. That is why medical cannabis may not be advertised to end consumers, but only to specific healthcare professionals.
If the CBD product is advertised with nutrition or health claims, the requirements of the Health Claim Regulation (EU 1924/2006) must be observed. For example, claims such as “high in Omega-3”, “may help to relax”, “for your inner balance” or “helps with acute and chronic pain, insomnia, migraine, etc” might be considered nutrition or health claims. German case law has classified the words “pleasant” (wohltuend) and “digestible” (bekömmlich) as health claims. Health claims are only permitted if they are included in the list of authorised claims in Articles 13 and 14 of the Health Claim Regulation. However, this list does not include specific health claims in relation to CBD products. Therefore, claiming that a CBD product may be beneficial for your health will not be permitted.
Advertising for cosmetic products must meet the requirements of Regulation (EU) No 655/2013. Furthermore, the “Technical document on cosmetic claims” sets out common criteria for the use of advertising claims. The requirements for advertising claims are:
- compliance with legal provisions;
- fairness; and
- informed decision-making.
The registration of cannabis trade marks is generally permitted in Germany and the EU. However, it should always be ensured that the trade mark to be protected is not contrary to the public policy or morality of an EU member state, as such a violation would lead to an absolute ground for refusal under EU law. As case law shows, this is especially likely to be assumed if a trade mark creates the impression that the use of cannabis as an illegal drug is being glorified.
“Despite the growing tolerance for cannabis use in large parts of the EU, case law is still quite conservative when it comes to protecting cannabis trade marks”.
For example, the European Union Intellectual Property Office (EUIPO) has refused registration of the following trade marks:
- Bavaria Weed;
- WELL WEED;
- Green Gelato;
- Exodus Cheese;
- Durban Poison;
- The Terps Donuts;
- 4.20 Hemp Fest;
- EVERWEED CBD; and
- BIO HEMP.
According to the EUIPO, the average consumer of such goods would understand the signs as an indication of marijuana or cannabis varieties, the production, distribution and possession of which is illegal in many EU member states. By indicating these goods, the trade marks promote and advertise, or at least trivialise, their acquisition. A sign that approves criminal acts is contrary to public order.
This view is shared by the European General Court (EGC), which upheld the EUIPO's “Bavaria Weed” decision. The trade mark was applied for in relation to medical cannabis and consisted of a lion holding a stylised cannabis leaf and the word element “BavariaWeed”.
According to the EGC, the association of the term “weed” with services of a therapeutic nature not only posed the risk that the use of this term would trivialise the consumption and production of narcotics, but the public would even see an official endorsement in it, creating the impression that the consumption and production of the narcotics to which the sign in question alludes is tolerated or even encouraged. The EGC argued similarly, refusing a trade mark application for food, drink and catering services consisting of a stylised representation of a cannabis leaf and the words “Cannabis Store Amsterdam”.
Despite the growing tolerance for cannabis use in large parts of the EU, case law is still quite conservative when it comes to protecting cannabis trade marks. Terms such as weed, hemp, pot, marijuana, cannabis, grass and hash, which are widely associated with the use of cannabis as an illicit drug, remain problematic.