What are practical uses for jewelry
Selling jewelry: avoid warnings
Especially in times of economic crisis, precious metals, as permanent and reliable investments, are increasingly competing with speculative securities and real estate, so that in addition to silver, gold and platinum in their pure form, the trade in jewelry is currently experiencing an upswing. In contrast to a large number of consumer goods, the sale of jewelery is not harmonized at the European level, but rather, based on its legal requirements, is made up of various sets of rules on product safety, consumer protection and intellectual property rights. This sales guide covers the most important prerequisites to consider when selling and promoting jewelry.
A. Requirements for the labeling and composition of jewelry
First of all, the legal framework is to be presented, which must be observed with a view to the specific nature of pieces of jewelry for sale. Although items made of precious metal in particular are subject to special regulations, the national characteristics of which vary within the EU with consequences for cross-border trade, manufacturers and retailers must also comply with the maximum permissible values of certain chemical substances regardless of the intrinsic value of the jewelry items they sell.
I. Control and hallmarking of jewelry made of precious metal
1.) Divergent systems in the member states
Gold and silver as well as products made from these precious metals are measured in terms of their intrinsic value and quality according to the respective grade of alloy, which is to be specified on the respective item as a purity indication for reasons of trust and trade protection according to specific standards.
This is done worldwide traditionally by hallmarking, i.e. the embossing of the products by stamp with the respective fineness determination.
Because all efforts of the European Union to standardize precious metal punching on the basis of homogeneous guidelines and procedures failed due to the interests of individual member states, the control and embossing provisions are still subject to individual national laws.
While in Germany the legal requirements are kept very liberal and the hallmarking is left to the manufacturer, dealer or importer on their own responsibility, other member states such as France provide for much more restrictive systems, according to which the mandatory hallmarking by a state control office after individual examination should only take place at the request of the manufacturer.
The most successful attempt to date to establish a cross-border hallmarking system was achieved in 1975 with the so-called Vienna Convention on the Testing and Designation of Precious Metal Objects, to which a large number of European member states have since joined. This agreement introduced a determination of the fineness in the form of a common hallmark, with which manufacturers can have their precious metal objects stamped upon request. In order to be able to affix the common hallmark, a precious metal item must have a purity indication, a responsibility mark and the official hallmark of a precious metal control office.
In the absence of an official control office and therefore a state test stamp, Germany is not yet planned to join.
2.) Requirements for the fineness specification according to the German FeinGehG
In Germany, the hallmarking of gold and silver as well as of products made of such metals in the form of the specification of the fineness is left to the respective manufacturer or dealer, but is subject to the provisions of the law on the fineness of gold and silver goods (FeinGehG).
The law specifies the standards for determining and specifying the fineness and also lays down specific requirements for certain gold and silver objects.
The admissibility requirements for the hallmarking of jewelry are based on §5, according to which the jewelry in question (made of gold and silver) may be stamped in any fineness. This must be stated in thousands. It is important that a stamp mark (uniform throughout Germany) stating the fineness stating the respective dealer company on pieces of jewelry, as provided for in Section 3 may not be attached.
For dealers, it is particularly relevant that they are responsible for the correctness of the information when hallmarked abroad, §7. However, if the hallmark has been made in Germany, only the person in whose name the hallmark was made is liable for the correctness.
Since the specification of a fineness always goes hand in hand with the identification of a certain quality and private and commercial customers should therefore be able to rely on the material integrity of the product, it is forbidden according to §8 to indicate the fineness on products that are filled with other metals. For example, a gold-plated ring made of another metal may not have a purity indication. To this extent, a special intrinsic value would be implied, which actually does not exist.
Violations of this special legal prohibition of misleading and fraud will be punished as an administrative offense in the case of intentional or negligent violation according to §9 Paragraph 1 No. 1.
The same applies according to No. 2 for the intentional or negligent incorrect declaration of the fineness as well as according to No. 3 when using an impermissible stamp (especially for jewelry).
3.) Problems of the German cross-border trade in precious metal jewelry
The liberal German legal situation for the hallmarking of jewelery made of precious metal, which does not provide for a state control with an official test mark, presents traders with cross-border sales with considerable organizational problems and is associated with considerable administrative expenditure in terms of time and money.
If a German entrepreneur wanted to export gold and silver jewelry to a country that is a member of the Vienna Convention and is therefore subject to more restrictive hallmarking regulations, it was unclear for a long time whether the exporter's obligation for downstream certification was lawful in the respective EU importing country.
In a landmark judgment (decision of 15.09.1994 - C 293/93), however, the ECJ took a final position on this question. The Court of Justice postulated that the idea of a unified internal market would be unreasonable if a member state provided for a new hallmark, even though the product had been lawfully marketed in the exporting country in accordance with the requirements applicable there.
However, this only applies to new inspections in the importing country if the results of the inspection carried out in the home Member State meet the requirements of the importing Member State.
This is precisely not the case for German precious metal products because, in contrast to the almost EU-wide standard, there is no official inspection. A recertification of the export of gold and silver jewelry from Germany is therefore legal.
This decision means that dealers, regardless of the form of distribution, have their goods hallmarked in Germany when they are exported to other member states (Bulgaria, France, Cyprus, Spain, Estonia, Finland, Hungary, Ireland, Italy, Latvia, Lithuania, Malta, the Netherlands, Poland, Portugal, Czech Republic, Great Britain, Romania, Slovakia, Slovenia, Sweden) have to undergo another state examination and stamping. However, since the legal bases vary in the various member states and, above all, the administrative structures lack uniformity, there is great legal uncertainty in the case of precious metal jewelry exports from Germany.
Products hallmarked in Germany may only be exported to Austria without a new control by the importing country. With some reservations, this is also possible for exports to Belgium, Luxembourg and Greece.
II. Union law restrictions on certain substances for jewelery
Regardless of the quality and value of a jewelery product and irrespective of the substances that are decisive for its composition (precious metals, other metals, plastic), European legal provisions must be observed when selling jewelery, which stipulate maximum limits for certain chemical elements whether their concentration. In particular, certain metals, which can be proven to have negative effects on health, may only be present in legally standardized quantities in jewelry.
If the guideline values are exceeded, both the placing on the market and the distribution of the products are prohibited and far-reaching sanctions can be imposed.
The maximum permissible concentrations of nickel are regulated in Appendix 5a to Section 6 No. 4 of the Consumer Goods Ordinance, which apply to jewelry based on the “Nickel Directive” 94/27 EC.
The guideline values are based on the maximum release of nickel from the respective piece of jewelry, which is still harmless to health, and vary with regard to the probable body contact and the nickel load of the item:
a) Nickel-containing commodities that come into direct and prolonged contact with the skin (usually with jewelry):
Maximum amount of 0.5 my nickel / square centimeter / week, released from the parts of the commodities that come into direct and prolonged contact with the skin
b) Nickel-containing commodities with a nickel-free coating:
as above, but compliance with the maximum amount for a period of at least two years with normal use
c) Rods of any shape that are inserted into pierced ears or other pierced parts of the body:
Less than 0.2 myg nickel / square centimeter / week released from the respective rods
Attention: the maximum permissible values also apply to any compounds containing nickel!
The regulation (EU / 494/2011) of May 20, 2011 also classifies the transition metal cadmium as a potentially health-endangering substance and regulates its maximum permissible concentration in relation to certain pieces of jewelry.
The following jewelry products may not be placed on the market if you Cadmium content 0.01 wt% (100 mg / kg) or more amounts to:
- Metal beads and other metal parts for making jewelry
- Metal parts for jewelry and fantasy jewelry products as well as hair jewelry (such as bracelets, necklaces, rings, piercing jewelry, wristwatches, arm jewelry, hair jewelry, brooches, cufflinks)
However, the guideline values do not apply to jewelry that is more than 50 years old on December 10, 2011. In consideration of the antiquity and the associated intrinsic value, such pieces of jewelery do not have to be checked for their cadmium content or taken back if the guideline values are exceeded, but may continue to be sold.
Attention: the maximum permissible values also apply to all compounds containing cadmium!
The health effects of lead were taken into account by EU regulation No. 836/2012, which limits the maximum permissible content of the metal in jewelry.
From a lead content of 0.05% by weight (500 mg / kg) With regard to each part of the jewelry (materials or individual parts), placing on the market and therefore distribution of the product is prohibited.
However, the restriction does not apply to natural gemstones, which may originally have a lead content that cannot be influenced, and inaccessible (inner) built-in parts of watches.
Jewelery that was manufactured before December 10, 1961 or first placed on the market before October 9, 2013, may continue to be sold regardless of the guide values.
Attention: the maximum permissible values also apply to all compounds containing lead!
B. Requirements for advertising and offers of jewelry
The principles of fair trading law must be observed when selling pieces of jewelry as well as in all advertising representations of own sales services in relation to jewelry. In particular, statements and designs must be avoided that are likely to deceive the consumer about aspects relevant to the purchase decision or that advertise a certain item with false information.
In addition, intellectual property rights, in particular, can set decisive limits to one's own freedom of action, because product comparisons (in addition to the regulations of comparative advertising) can violate third-party trademark rights. Third-party copyrights should also be preserved, from which action can be taken against imitating jewelry designs.
Failure to take the necessary care can create a considerable risk of warning, especially in the online jewelry trade, which can be associated with considerable expenditure of time and money.
Special case constellations and noteworthy examination points are shown below using examples from case law.
II. Item names and shop categories
Not only, but especially in online trading, where it is not possible for the consumer to actually inspect the object of purchase prior to the conclusion of the contract due to remote communication, the prohibition of misleading fairness must be observed.
From §5 UWG it emerges that all statements made must be verifiably correct and, moreover, must not be so ambiguous that a different understanding of the target public is to be expected.
1.) Item names
When selling and advertising jewelry, it is important to ensure that the respective item description truthfully reflects the properties and composition of the item on offer. Materials may not be specified that imply a special, actually non-existent quality due to their higher quality, nor may false or deceptive statements be made about the actual percentage content of certain decision-relevant substances.
An online retailer who described a gold-colored bracelet in its offer as "solid gold" and also added the indication "750/18 kt.", Although the piece of jewelry was only coated with a layer of gold, committed so in the opinion of the LG Karlsruhe ( Judgment of 08/09/2013 - Ref .: 9 S391 / 12) a misleading business act. A sensible consumer would reasonably expect a bracelet made of solid gold in its purest form and do not assume that there is actually only a very small amount of gold - especially because of the carat information. The dealer has thus deceived the composition and quality of the goods within the meaning of Section 5 (1) sentence 2 no. 1 UWG.
In any case, it is not permitted to list substances or elements that are actually not included in the item names or offer descriptions that indicate the high quality of the piece of jewelery. Formulations such as "made of ...% gold" or "with x-carat ruby" should only be chosen if the specified number set is actually achieved with regard to the object. Equally anti-competitive is those who give incorrect alloy grades or carat sizes that have not been achieved.
If it is not possible to determine whether certain precious metals or high-quality stones have actually been used in the jewelry offered, you should urgently refrain from promoting them in this regard. In such cases, in order to avoid being misled, a gold or silver color or a decorative stone to get expelled.
Carats and alloys (also of processed materials) are usually essential properties of a piece of jewelery, so that anyone who does not refer to the associated intrinsic value of the product in an article description can be misled by failure to do so within the meaning of Section 5a, Paragraph 3 of the UWG .
Basically, it is advisable to make statements in the context of jewelry offers and advertising as precise as possible to prevent obvious misunderstandings and to legally secure one's own commercial presence. If an object is only covered with gold, this should be made clear. The term "real gold" is, because there is no opposite of "fake gold" and it will always be a different metal, not very meaningful and can be deceptive.
Exaggerations or fantasy words that actually suggest certain jewelry properties and euphemize the offer too much should be avoided.
2.) Shop categories
Anyone who assigns less valuable pieces of jewelry in online shops to categories that are reserved for goods made of high-quality metals or stones can also be misleading.
In the headings “Precious metal: gold” or “Precious metal: silver” only goods should be listed that in their entirety actually have a significant content of the respective element.
Otherwise, based on the classification, the consumer assumes a high quality and product quality that actually does not exist. Any explanatory notes in the item descriptions can then only change something in the assessment of the behavior as misleading in individual cases.
Although the jurisprudence has not yet established any reference values in the form of minimum percentages of precious metals in jewelry products for allocation to certain classes, the following differentiation can be made:
According to a widespread view based on the wording, categories of “gold jewelry” or “silver jewelry” are only achieved when the proportion of precious metal in the product is greater than 50%.
On the other hand, jewelry with a lower precious metal content is considered to be “containing gold or silver”.
III. Leaning comparisons
It happens again and again that jewelry retailers want to give their goods a certain meaning and attraction by associating them with products of well-known brands in their offers. Even if the consumer is not intended to be misled that the item sold is actually a (high-quality) product from a well-known jewelry manufacturer, the reference at least serves to use the reputation of a third-party brand for one's own goods. For example, consumers should be informed in such a way that they can purchase a product that is comparable to the design or concept of a brand for a low price.
1.) Unfair comparative advertising without misleading
Comparisons that are based on the jewelry offered on a third-party brand regularly fall within the scope of the regulations on comparative advertising within the meaning of Section 6 UWG. By naming someone else's license plate, a direct connection is established for the targeted public, which compares one's own offer with that of another manufacturer.
It is true that comparative advertising is not fundamentally inadmissible. However, it is prohibited if the comparison exploits or impairs the reputation of the label used by a competitor in an unfair manner, Section 6 (2) No. 4 UWG.
If a piece of jewelery is advertised with formulations that imply a similarity to a branded product (e.g. "watch à la Cartier"; bracelet in "Swarovski design"), the good reputation of someone else's label is regularly used to highlight the company's own offer. There is an image transfer, which can trigger claims for cease and desist by the company referred to and, from case to case, is flanked by a reduction in the attractiveness of the third-party label in the sense of damage to its reputation.
It is imperative to avoid similar comparisons, with which identifying information refers to the optical conformity of the offered product with those of other brands. Expressions such as “à la”, “in the style of”, “with the same design as” can exploit and impair the reputation of someone else's label and justify injunctive relief according to Section 6 (2) No. 4 UWG. In addition, claims under trademark law (see below) also come into consideration.
It should be noted that although such comparisons imply a certain design congruence, they generally do not cause any misleading mix-ups among consumers in such a way that the offer is wrongly attributed to the third-party brand manufacturer.
2.) Misleading comparative advertising
This can, however, be the case if relativizing reference words are dispensed with and only an external identifier is used in the own article or offer description.
In the absence of formulations such as “à la” or “how”, it cannot be ruled out that the target public will recognize the advertised offer as one from the third-party manufacturer and therefore be subject to confusion.
The offense of Section 5 (2) UWG, which covers such cases and declares them inadmissible, is sufficient for the decisive likelihood of confusion that the comparison suggests an economic connection between the provider and the third-party manufacturer referred to.
Formulations such as "SWAROVSKI earrings" or the addition "SWAROVSKI Edition" in offers of products that do not come from the company mentioned regularly cause such a risk of confusion and go beyond an exploitative comparison, in that the character implies a work done by the brand manufacturer becomes. The use of the term “original” in such constellations is just as harmful.
Brand names should be avoided in the case of products that can be proven to have no economic connection to the specified labeling. Especially the strongest companies in the jewelry industry such as Cartier, Swarovski, Pandora and Co. pursue their rights rigorously and try very hard to track down and combat unfair comparisons.
If an offered jewelry product contains actual design elements from a third-party (brand) manufacturer, because these were processed, for example, during production, the advertising must be kept as precise as possible. Generalizing approaches correspond to the constellations described above, so that it is advisable to name the branded materials used too precisely.
If a piece of jewelery contains crystals from “Swarovski”, the wording “Swarovski jewelery” is not permitted, the statement “contains real“ Swarovski elements ”, on the other hand, is generally permitted.
3.) Infringements of trademark rights
If a reference is made to a third-party protected label in a related comparison, the provisions of trademark law with its own infringement offenses are applicable in parallel in addition to the provisions on comparative advertising.
If a protected label is used for the same goods for which it was registered, Section 14 (2) No. 1 MarkenG is regularly relevant, which among other things serves to protect various brand functions and in addition to the risk of confusion (impairment of the function of origin) Cases of reputation exploitation (impairment of the advertising and investment function) recorded (see the judgment of the BGH of April 30, 2008 - I ZR 73/05 - Internet auction III)
If the products that are offered or advertised based on the third-party brand are obviously of poor quality, the brand's function of guaranteeing customers certain product standards (quality function) may also be violated.
If the unauthorized use of the license plate is a well-known one, the offense of Section 14 (2) No. 3 UWG also applies.
In addition to injunctive relief, claims for damages are also conceivable in the case of trademark infringements (unlike most violations of fair trading law).
4.) Special case: compatibility information
Information about compatibility with certain products of other brands occupy a special area within the related comparisons.
For example, it is not uncommon for small retailers who produce jewelry (pearls, etc.) as supplements for certain accessories in-house to determine the intended use, for example through the formulation “comp. with Pandora ”.
a) Judgment of the LG Munich I
However, in a very controversial decision, the LG Munich I declared such compatibility information to be inadmissible under certain conditions.
The decision was based on a situation in which an online retailer sold his jewelry with the phrases “clip comp. T. Sabo "or" compatible Pandora "offered.
The court saw this as misleading about the commercial origin of the goods and also misleading comparative advertising because it provoked misconceptions about whether the goods offered were products of the T. Sabo or Pandora brands.
However, in the case to be assessed by the Munich Regional Court, the defendant's behavior went beyond the mere declaration of compatibility. Rather, he also had the articles he had produced himself in the product categories “T. Sabo "and" Pandora "set to increase his hit rate (for the constellations see above). The Munich Regional Court classified the interplay between the compatibility information and the deceptive product category as misleading, which is plausible insofar as consumers can only expect original goods when browsing through the relevant categories.
b) Different assessment
The reason given by the regional court that the word “comp.” Does not remove the misleading approach because it cannot be assumed that the consumer understands it as an abbreviation that only indicates the intended purpose of the jewelry, on the other hand, seems alien to life.
If a product is shown to be compatible with another, this basically rules out the misconception that this product originates from the company referred to, provided that a member of the targeted public is appropriately attentive. The fact that the common abbreviation “comp.” Does not clearly evoke such an understanding contradicts the current model of an informed consumer.
If the judgment of the Munich Regional Court I was also an individual decision, in the absence of discernible deviating tendencies in the case law, compatibility information should be used with caution. In any case, with such purposes, care should be taken that the offers are not placed in the categories of compatible jewelry. The abbreviation “comp.” Should also be avoided.
However, as soon as the word “compatible” is written out in full and a brand is named, the IT law firm believes that there are no concerns about its admissibility.
Misleading is then basically excluded and the facts of comparative advertising (reputation exploitation and reputation impairment) are usually not available because compatibility information as mere identification does not achieve the required degree of unfairness. It is true that the infringement of trademark rights comes into consideration. However, even if this is the case, the limit of Section 23 No. 3 MarkenG must be observed, which basically exempts brand information as an indication of the purpose of a product, in particular as an accessory or spare part, within the framework of what is necessary.
This condition of permission should always be met in the case of offers and advertising from jewelry dealers who make extensions or accessories for known pieces of jewelry and indicate their compatibility.
Attention: the need for a brand name as an indication of the purpose of a product within the meaning of §23 No. 3 MarkenG is not applicable if, for example, a protected figurative mark is used, although the same goal could also be achieved with the less incisive designation of the word mark.
IV. Advertising with "nickel free"
As part of a much-noticed warning system, the developer of a patented method for the production of nickel-free stainless steel has recently taken action against jewelry dealers who advertised in their offers that their items were "nickel-free". Due to the increasingly perceived negative health effects of the metal, such advertising messages serve to suggest to the consumer that the respective item is harmless and thereby stand out from other providers.
According to a leading decision by the BGH (judgment of April 10, 2014 - Az. I ZR 43/13 - nickel-free), the statement that a piece of jewelery is "nickel-free" is always misleading within the meaning of Section 5 (1) sentence 2 no 1 UWG, if it actually contains nickel or nickel compounds, no matter how small.
The consumer understands the statement to the effect that the advertised item lacks any nickel content. It is irrelevant that only traces can be detected or that the amount undercuts the maximum permissible concentrations (see above under A. II. 1).
The term “nickel-free” may only be used for advertising if the product in question demonstrably contains no nickel components at all (or any nickel compound). If, on the contrary, the presence of residual quantities cannot be ruled out due to a lack of detailed examination, the advertising addendum should be dispensed with.
V. Inadmissible health-related statements
In certain sections of the population, certain gemstones and special metal compounds are said to have a health-promoting, even healing effect, which jewelry dealers occasionally adopt in order to fill their advertising with esoteric content and at the same time to demonstrate the special attractiveness of their products.
In the opinion of the LG Hamburg (judgment of August 21, 2008 - Az. 327 O 204/08), statements in offers and advertising that uncritically attribute positive health effects to stones or entire pieces of jewelery violate the prohibition of misleading in Section 5 (1) sentence 2 no 1 UWG and also against the Medicines Advertising Act (HWG).
In its judgment, the court forbade a dealer of so-called "healing stones" to advertise with the formulation "Helps with high blood pressure, relieves headaches and promotes circulation". The decisive factor here was that there were no scientifically proven indications for the effects of such stones (which, by the way, do not exist for metals or precious stones either). In this respect, consumers would expect therapeutic effects from the statements that the object of sale actually does not or cannot do justice to.
Even a reference to the lack of scientific confirmation of the alleged effects should not change the inadmissibility, since in this case the consumer could still assume an actual effect and he only takes from the statement the fact of the (so far) not provided scientific evidence ( LG Giessen, judgment of 02.10.2007 - Az. 6 O 43/07)
Any allegedly positive effects of jewelry or their components on the human body that have not been proven by unequivocal studies should never be highlighted in advertising or stored in article descriptions.
C. Right of withdrawal
When selling pieces of jewelery at a distance, the consumer is generally entitled to the statutory right of withdrawal, §§312g, 355 BGB.
It should be noted that this was fundamentally reformed as part of the implementation of the Consumer Rights Directive on June 13, 2014 and since then has provided, among other things, a new cancellation policy including a sample cancellation form. This makes an update of the terms and conditions absolutely necessary!
The inadequate or inadequate implementation of the new revocation provisions justifies legal violations that can be warned, so that the new requirements must be taken into account.
In addition to the essential changes and new requirements, practical instructions and tips are listed in detail in this series from the IT law firm and on the specially set up website http://www.widerrufsbelehrung-2014.de.
In the absence of relevant legal acts, the sale of jewelry has not been harmonized in its entirety by European law, but is made up of various special laws due to its legal requirements.
With regard to the manufacture and sale of precious metal jewelry, the national hallmarking requirements in particular and, in the export trade, the more restrictive provisions of the other member states must be observed. Likewise, the maximum permissible concentrations of various harmful ingredients must not be exceeded.
On the other hand, the offer and advertising of jewelry are subject to the admissibility requirements of fair trading law and must be protected from misleading designs and unfair comparisons. However, intellectual property rights such as copyright and trademark law also set limits.
Finally, especially in online jewelry retailing, it is important to ensure compliance with the new revocation provisions, in particular the legally compliant provision of the new revocation instructions with the sample revocation form.
The advice of the IT law firm shows the most important prerequisites that have to be observed when selling jewelry, and not only deals with basic legal requirements, but also illuminates the relevant developments and tendencies in case law.
If you have any further questions about the jewelry trade or if you need help with the legally compliant design of your online presence, the IT law firm is at your disposal.
tip: Do you have any questions about the contribution? Feel free to discuss this with us in the entrepreneur group of the IT law firm on Facebook.
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