The well-known soft drink “Gröbi” is available in several flavors including “Gröbi Wild Berry”. Its bottle label is adorned with vivid images of local fruits such as blackberries, blueberries and raspberries. On the website, the drink is described, among other things, with the description “This is the taste of home. Enjoy the berry. Like a basket of fruit freshly picked from the forest“Praised.
In fact, “Gröbi Waldbeere” does not contain any elements of wild berries, neither in the form of juice (concentrate) nor in the form of natural flavors of the fruit. VKI found this to be false product presentation and filed a case. HG Vienna already followed the VKI's legal opinion and banned DrinkStar GmbH from this type of advertising because the product does not contain fruit juice or juice concentrate as depicted. The presentation is not permitted even if the natural flavors of the fruit depicted in the drink are present.
As a result, the Higher Regional Court of Vienna upheld the decision and stated that amending the list of ingredients does not change its potential to mislead because a large number of consumers did not read it or did not read it with much attention. The Vienna Higher Regional Court did not accept DrinkStar GmbH's objection that consumers would only understand the depicted fruit as a symbol of taste. Gröbi Waldbeere does not meet the Food Code requirements for soft drinks. In the court's view, this does not exclude the possibility that the product presentation is misleading.
An extraordinary appeal brought by DrinkStar GmbH against this was rejected by the Supreme Court.
Higher Regional Court Vienna, November 13, 2023, 33 R 130/23i
OGH January 25, 2024, 4 Ob 230/23m
Defendant: Dr. Anne Marie Koczesnik-Werle, lawyer in Vienna
