Legal Position

The legal position of a customer for custom-made products, self-construction, OEM articles, or a product with an own brand representation is manufacturer according to the Product Safety Act (ProdSG). §2 of the ProdSG determines the status of a manufacturer as follows.

Manufacturer means any natural or legal person who manufactures a product or has a product designed or manufactured and markets that product under his own name or trademark

(a) affixes its name, trade mark or other distinctive sign to a product in a commercial manner, thereby impersonating the manufacturer; or

(b) reprocesses a product or affects the safety properties of a consumer product and subsequently makes it available on the market

Placing on the market means making a product available on the market for the first time; import into the European Economic Area is equivalent to placing a new product on the market.

In accordance with the relevant legal opinion, it can be established that anyone who affixes his name, trademark (logo) or his own product marking to a product on - or as in the case of porcelain under - a product, or has it affixed, is a manufacturer within the meaning of the Product Safety Act.

This means that every customer of a custom-made product, or a product with his private label representation, made of porcelain or other ceramic materials, which is marked with his product identification, company name, logo or floor brand, is a manufacturer.

Even if the customer of a custom-made product, or a product with a private label representation, commissions another member of the Union to import into the European Economic Area in his name a product which is marked with his product identification, company name, logo or floor brand, the manufacturer remains nevertheless the manufacturer. The manufacturer status in the sense of §2 of the ProdSG is also maintained if the customer of a custom-made product or a product with a private label representation is manufactured, processed or modified by a Union manufacturer.

Thus all obligations, which are to be fulfilled for an intended use of a commodity, are incumbent on the client of a special production, or a product with a self-mark representation, are fulfilled by the client himself.

In the internal relationship, the customer can entrust a contractor for a marketing to fulfill the tasks and obligations, but this does not exempt him from the liability risk in the external relationship towards third parties according to the Product Safety Act.

Whoever wishes to market a product under his own name is therefore not exempt from many duties and obligations, even if he has entrusted and commissioned another company to carry out the marketing.

For explanation a case study

A retail chain places an order with Holst Porzellan for a coffee pot. The pot is provided with the logo and name of the chain. The retail chain distributes these jugs in the catering industry. Among other things, the chain delivers these jugs to a hospital of the municipal clinics. On a ward a damage occurs. The bottom of the jug breaks out and scalds the legs of a patient with hot coffee. Treatment costs and pain compensation are claimed.

With great naturalness, the retail chain turns to Holst Porzellan to take recourse. However, Holst Porzellan's exhibits contained sample pieces of such a jug, which the chain of stores had previously purchased from a German manufacturer. Also with the bottom mark of this chain of stores. At the trial hearing, the representative of the retail chain confirmed that he had purchased such jugs from at least four different manufacturers in the past. Thus, it was not possible for the chain of stores to determine the manufacturer of the damaged can beyond any doubt. In view of the durability of hard porcelain, the court took the view that the last, i.e. youngest, supplier could not necessarily be determined directly as the supplier. The case was decided in favor of Holst Porzellan with full cost burden of the retail chain.

The retail chain has not fulfilled its obligations as a manufacturer within the meaning of the Product Safety Act, or has done so only very inadequately.

Note: The technical differentiation through the color and design of the floor mark was not appreciated by the court. However, this distinction enabled Holst Porzellan to establish that the jug in question was not in fact placed on the market by it.