“Container Size” (Tiegelgröße)

• (a) A court decides in breach of the principle of party disposition that applies in civil proceedings when it bases its judgment on an injunctive claim regarding misleading claims on an aspect of misleading that the plaintiff did not coherently argue (extension of the Federal Supreme Court, 2017 GRUR 295 – Entertain).

• (b) The assumption of a deception regarding the amount contained in a product by the design of the size of the outer packaging (“sham package”) depends on whether, based on the circumstances of the individual case and with respect to the concrete product in question, the public has the impression that the size of the packaging is in an appropriate proportion to the amount of the product contained in it.

• (c) To assess what degree of attention the consumer pays to a product and whether the consumer will perceive not only the front but also the details printed on a different part of the packaging, it is significant whether the consumer regularly bases the decision to purchase a product, among other things, on its composition. This must regularly be assumed in the case of a lotion for facial care.

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