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Editorial

BGH – A “Praxisklinik” must maintain the option of admitting inpatients

March 2019 - EU & Competition. Legal Developments by GRP Rainer LLP.

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A medical practice cannot advertise using the term “Praxisklinik” (“clinic” in English) if it does not provide overnight accommodation. That was the view upheld by the Bundesgerichtshof (BGH) in a ruling from October 17, 2018 (Az.: I ZR 58/18).

The Oberlandesgericht (OLG) Hamm, the Higher Regional Court of Hamm, had already concluded in a judgment from February 27 of 2018 that a dental practice which will not admit its patients as inpatients even temporarily cannot advertise using the term “Praxisklinik”. In doing so, it overturned the ruling at first instance of the Landgericht Essen, the Regional Court of Essen (Az.: 4 U 161/17). We at the commercial law firm GRP Rainer Rechtsanwälte note that this kind of advertising is misleading to consumers, because the term “Klinik” gives rise to the expectation among consumers that there is at least the possibility of being admitted as an inpatient.

The dentist in the case in question nonetheless took the view that when confronted with the term “Klinik”, consumers expectations extend merely to the possibility of undergoing a surgical procedure. Given that this description applies to his practice, he brought a complaint against the decision to refuse leave to appeal. The complaint has since been dismissed by the Bundesgerichtshof (BGH), Germany’s Federal Supreme Court.

The Bundesgerichtshof did not follow the dentist’s line of reasoning and instead upheld the OLG Hamm’s view that consumers expect from a “Klinik” at least the facilities necessary for temporary inpatient admission overnight. It held that this is true even if inpatient admission only becomes necessary in exceptional circumstances. For this reason, the advertising was found to be misleading to consumers insofar as this service was not provided.

The Court went on to state, however, that the term “Praxisklinik” is not only misleading to consumers but also harmful to competitors, since appearing to provide for inpatient admission as an additional service allows the dental practice to present itself as a preferable alternative to a dental practice that solely provides outpatient services as well as an alternative worth considering to a “Zahnklinik” (dental clinic) in the proper meaning of the word.

As important as advertising is for many businesses and service providers, it is equally important to bear in mind how easy it is to mislead consumers and violate competition law. Violations of competition law can give rise to various sanctions, including formal warnings, injunction suits and damages claims. Lawyers with experience in the field of competition law can offer advice and assist in enforcing or fending off claims arising from violations of competition law.

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