Higher Regional Court of Cologne: “Bronchostop” cough syrup is not a misleading name even if it cannot stop the cough

Co-Author: My Anh Cao

In a recent decision, the Higher Regional Court of Cologne (decision dated 16 September 2022 - 6 U 24/22, GRUR-RR 2022, 510) considered the admissibility of the designation “Bronchostop” for a cough syrup, even though according to the manufacturer’s specifications it was not suitable for stopping coughing, but could only alleviate it and promote the clearance of symptoms. The Higher Regional Court of Cologne, however, classified the designation as not misleading and dismissed the action.

The plaintiff is an association dealing with unfair commercial practices. The defendants are pharmaceutical companies which market the preparation “Bronchostop Sine Cough Syrup” in Germany. The preparation is a traditional herbal medicinal product registered pursuant to Sections 39a et seq. of the German Medicines Act (AMG) and is only available in pharmacies. The plaintiff was of the opinion that the medicinal product name “Bronchostop” was misleading. In support of this, it argued that the relevant consumer understood the designation “Broncho” to refer to a respiratory disease and “stop” to mean the termination of the cough by taking the medicinal product. In reality, however, the cough was merely alleviated and not stopped. The defendants were of the opinion that the medicinal product designation was not contestable under competition law due to the factual and binding effect of the registration. They argued that the plaintiff assumed an incorrect understanding by the relevant consumer and that the name was to be understood associatively. It was not unusual for medicinal products to bear the name “stop”.

The Higher Regional Court ruled in favour of the defendant that the name “Bronchostop” was not misleading within the meaning of Section 8 (1) no. 2 AMG. The relevant consumer understood the name “Bronchostop” to mean that the medicinal product was effective against cough or cough irritation, but did not necessarily also stop the cough. From the wording “Broncho”, the public understood that the preparation could be used for a disease in the bronchial region. However, the components “broncho” and “stop” could not be combined - this would result in a statement that was meaningless according to the wording, which provided for the “stopping of the bronchial tubes”. In the present case, however, a concrete definition of what the cough syrup was intended to stop was not recognisable. There are numerous possibilities to which diseases or malfunctions the statement “stop” could refer, so that the public would not attach any further meaning to the statement. Whether registration as a trademark could lead to a different result was therefore irrelevant.