What requirements are placed on geographical indications of source if the consumer associates a very specific place with the designation? Is the geological location in the Himalayan mountains sufficient for a salt to be advertised with the designation of origin “Himalayan salt”? The Cologne Higher Regional Court has ruled on this.

The operator of an online food store offered a “Himalayan king salt from Pakistan/Punjab”, among other things. The label featured the silhouette of a mountain range. An association for combating unfair competition then issued a cease and desist letter to the retailer as it considered the product name to be misleading.

In its judgment of 17.09.2021 – 84 O 118/21, the Regional Court of Cologne ruled in favor of the plaintiff association and found the name “Himalayan salt” to be misleading. The operator of the online store has appealed against this decision.

Consumers associate Mount Everest

As early as 2016, the Federal Court of Justice (BGH) in Karlsruhe ruled in its judgment of 31.3.2016 – I ZR 86/13 that the term “Himalayan salt” is misleading if the salt does not come from the high mountains of the Himalayas. According to the highest civil court judges, the average consumer associates the term “Himalayan salt” with salt that is obtained from the high mountains around Mount Everest.

However, the judges also made it clear that retailers can counteract the misleading effect by providing a clarifying additional reference to the specific mining region alongside the designation “Himalayan salt”.

“Himalayan salt” is misleading

In the case of “Himalaya-KönigSalz aus Punjab/Pakistan”, the Cologne Higher Regional Court ruled in its judgment of 08.04.2022 – 6 U 162/21 that the addition “from Punjab/Pakistan” was not sufficient to prevent consumers from being misled by the term “Himalayan salt”.

By using the geographical indications of origin “Himalaya” and “Pakistan/Punjab”, the retailer she is violating trademark law. According to trademark law, geographical indications of source may only be used if goods originate from the place, regiont or country. The Punjab/Pakistan region is around 200 km away from the high mountains of the Himalayas. Salt extracted there is indeed from the geological region of the Himalayan mountains. However, according to the judges, the product must bear the clarifying addition of the specific place of extraction.

Addition “from Punjab/Pakistan” is not sufficient

The court made it clear that the retailer could have avoided the trademark infringement if it had stated the place of extraction “Salt Range” instead of “Pakistan/Punjab”. The misleading effect on the consumer was also reinforced by the mountain range depicted on the label, as the average consumer would associate it with the high mountains of the Himalayas.

The judges also stated that they did not share the retailer’s view that the claim “Himalayan salt” had meanwhile developed into a generic term that stood in contrast to other types of salt such as fleur de sel. In the opinion of the OLG, the geographical origin of “Himalayan salt” is of primary importance to consumers.

CONCLUSION

Retailers should use designations of origin for their products with caution and seek legal advice if in doubt.