Monday, 17 June 2019

Orth Kluth wins for Dr. Z ahead of OLG Dusseldorf

No misleading use of the fantasy name "Dr. Z" for a dental practice of a medical care centre, even if no doctorate dentist is employed in this practice.

On the appeal lodged by Orth Kluth in the main action proceedings between Dr. Z Medizinisches Versorgungszentrum GmbH (Dr. Z), represented by Orth Kluth, against the Zahnärztlicher Bezirksverband Oberpfalz e. V., a public corporation, the Higher Regional Court of Dusseldorf (OLG) cashed the first-instance judgment of the Regional Court of Dusseldorf by judgment of 23 May 2019 (Case No. I-20 U 43/18). The legal dispute concerned the legal question of whether a fantasy designation with the component "Dr." can be misleading for a dental practice of a medical care centre if no doctorate tooth (physician) is actually active in the concrete practice.

The specific background to the dispute was that Dr. Z signposted one of its dental practices with the registered word and figurative mark "Dr. Z", the words "Dr. Z MVZ GmbH" and "Dr. Z Zahnmedizinisches Versorgungszentrum GmbH" and, in this context, referred to a doctor who had not obtained a doctorate as "Zahnärztliche Leitung". Even beyond the dentist named on the sign, no dentists with a doctorate were active in the specific practice at that time.

On this basis, the Zahnärztliche Bezirksverband Oberpfalz e.V. (Dental District Association of Upper Palatinate) had initially won a judgement of the District Court of Düsseldorf in which Dr. Z was sentenced to refrain from the above-mentioned designations if no doctorate (dental) doctor was to work in the specific practice. The Düsseldorf Regional Court ruled that the designation was misleading, unless a doctor was also active in the specific practice. The consumer expects this due to the company name and signs, so that he is led astray. Orth Kluth appealed against this on behalf of Dr. Z. The consumer was not entitled to appeal.

Following Orth Kluth's interpretation of the law, the Düsseldorf Higher Regional Court assessed this differently, overturned the first-instance ruling of the Düsseldorf Regional Court and dismissed the action brought by the district association. According to the Senate, the decisive factor is that in the individual case the special appreciation of the doctorate, a completed university education, is fulfilled. The doctorate proves the patient's ability to carry out independent scientific work, but this is not important to the patient in the daily operation of a dental practice. At least not if it is a medical care centre. Furthermore, it is relevant that the doctorate is not used in connection with a specific name, but exclusively in the context of an artificial word creation ("Dr. Z.") in the company name. As a result, it is decisive whether the reason for the special esteem in which the doctorate is held is fulfilled in the individual case. According to the case-law of the Federal Court of Justice (BGH) on a tax consulting company, this lies in the proof of a completed university education. The comprehensive training as a dentist fulfils these criteria. It is decisive for the respective patient that the dentist treating him has the professional competence required for the respective treatment. According to the Senate, the promotion of a single doctor in the practice is not associated with any individual advantage for the individual patient.

The ruling is not yet final.

Updated on 5 August 2019: The Zahnärztliche Bezirksverband Oberpfalz e.V. has appealed against this to the Federal Supreme Court. This had been admitted by the Higher Regional Court of Düsseldorf because of the fundamental significance of the matter and a deviating decision of the Higher Regional Court of Nuremberg.