• Mehr als 3 Millionen Wörter Inhalt
  • |
  • info@itmedialaw.com
  • |
  • Tel: 03322 5078053
Rechtsanwalt Marian Härtel - ITMediaLaw

No products in the cart.

  • en English
  • de Deutsch
  • Informationen
    • Ideal partner
    • About lawyer Marian Härtel
    • Quick and flexible access
    • Principles as a lawyer
    • Why a lawyer and business consultant?
    • Focus areas of attorney Marian Härtel
      • Focus on start-ups
      • Investment advice
      • Corporate law
      • Cryptocurrencies, Blockchain and Games
      • AI and SaaS
      • Streamers and influencers
      • Games and esports law
      • IT/IP Law
      • Law firm for GMBH,UG, GbR
      • Law firm for IT/IP and media law
    • The everyday life of an IT lawyer
    • How can I help clients?
    • Testimonials
    • Team: Saskia Härtel – WHO AM I?
    • Agile and lean law firm
    • Price overview
    • Various information
      • Terms
      • Privacy policy
      • Imprint
  • Services
    • Support and advice of agencies
    • Contract review and preparation
    • Games law consulting
    • Consulting for influencers and streamers
    • Advice in e-commerce
    • DLT and Blockchain consulting
    • Legal advice in corporate law: from incorporation to structuring
    • Legal compliance and expert opinions
    • Outsourcing – for companies or law firms
    • Booking as speaker
  • News
    • Gloss / Opinion
    • Law on the Internet
    • Online retail
    • Law and computer games
    • Law and Esport
    • Blockchain and web law
    • Data protection Law
    • Copyright
    • Labour law
    • Competition law
    • Corporate
    • EU law
    • Law on the protection of minors
    • Tax
    • Other
    • Internally
  • Podcast
    • ITMediaLaw Podcast
  • Knowledge base
    • Laws
    • Legal terms
    • Contract types
    • Clause types
    • Forms of financing
    • Legal means
    • Authorities
    • Company forms
    • Tax
    • Concepts
  • Videos
    • Information videos – about Marian Härtel
    • Videos – about me (Couch)
    • Blogpost – individual videos
    • Videos on services
    • Shorts
    • Podcast format
    • Third-party videos
    • Other videos
  • Contact
Kurzberatung
  • Informationen
    • Ideal partner
    • About lawyer Marian Härtel
    • Quick and flexible access
    • Principles as a lawyer
    • Why a lawyer and business consultant?
    • Focus areas of attorney Marian Härtel
      • Focus on start-ups
      • Investment advice
      • Corporate law
      • Cryptocurrencies, Blockchain and Games
      • AI and SaaS
      • Streamers and influencers
      • Games and esports law
      • IT/IP Law
      • Law firm for GMBH,UG, GbR
      • Law firm for IT/IP and media law
    • The everyday life of an IT lawyer
    • How can I help clients?
    • Testimonials
    • Team: Saskia Härtel – WHO AM I?
    • Agile and lean law firm
    • Price overview
    • Various information
      • Terms
      • Privacy policy
      • Imprint
  • Services
    • Support and advice of agencies
    • Contract review and preparation
    • Games law consulting
    • Consulting for influencers and streamers
    • Advice in e-commerce
    • DLT and Blockchain consulting
    • Legal advice in corporate law: from incorporation to structuring
    • Legal compliance and expert opinions
    • Outsourcing – for companies or law firms
    • Booking as speaker
  • News
    • Gloss / Opinion
    • Law on the Internet
    • Online retail
    • Law and computer games
    • Law and Esport
    • Blockchain and web law
    • Data protection Law
    • Copyright
    • Labour law
    • Competition law
    • Corporate
    • EU law
    • Law on the protection of minors
    • Tax
    • Other
    • Internally
  • Podcast
    • ITMediaLaw Podcast
  • Knowledge base
    • Laws
    • Legal terms
    • Contract types
    • Clause types
    • Forms of financing
    • Legal means
    • Authorities
    • Company forms
    • Tax
    • Concepts
  • Videos
    • Information videos – about Marian Härtel
    • Videos – about me (Couch)
    • Blogpost – individual videos
    • Videos on services
    • Shorts
    • Podcast format
    • Third-party videos
    • Other videos
  • Contact
Rechtsanwalt Marian Härtel - ITMediaLaw

Everyday mask is not a medical device and may be sold online

7. November 2022
in Competition law, Law on the Internet
Reading Time: 2 mins read
0 0
A A
0
legal 1143114 1920
Key Facts
  • The 4th Civil Senate of the Higher Regional Court of Hamm dealt with the classification of "everyday masks".
  • The applicant company from Isernhagen wanted to have the sale of "fabric masks" banned.
  • The Regional Court of Münster prohibited the sale of the "mouth and nose mask", but rejected the application for the "fabric mask".
  • The "fabric mask" was not considered a medical device within the meaning of the Medical Devices Act.
  • The assessment depends on the manufacturer's determination, not on retail use.
  • According to the manufacturer, the "everyday mask" did not serve a medical purpose and was not assigned to any particular product protection category.
  • It was not necessary for the distributor to clarify that the product was not a medical device in accordance with the applicable infection control regulations.

In a decision dated December 15, 2020 (Case No. I-4 W 116/20), the 4th Civil Senate of the Higher Regional Court of Hamm had to deal with the question of whether an “everyday mask” in the form of a “textile mouth-nose covering” is a medical device and – if this were not the case – whether this would have to be clearly indicated.

In summary proceedings, the applicant company from Isernhagen is demanding that a wholesaler from Drensteinfurt stop selling a “fabric mask” suitable for covering the mouth and nose and a “mouth and nose mask”.

The Münster Regional Court, which initially dealt with the matter, prohibited the company from Drensteinfurt from distributing the “mouth and nose mask” by order dated November 6, 2020 (Case No. 025 O 89/20). It rejected the further application with regard to the “fabric mask”. The applicant company from Isernhagen has filed an immediate appeal against this decision.

Without success!

The distribution of the mask – according to the Senate – would not be prevented by the Medical Devices Act (MPG), which is intended to regulate the circulation of medical devices and thereby ensure the safety, suitability and performance of the medical devices as well as the health and necessary protection of patients and users of the devices in particular.

This is because the “fabric mask” is not a medical device within the meaning of Section 3 No. 1 of the MPG. For the assessment of whether a product – as required for classification as a medical device – serves a medical purpose, it is the (subjective) determination of the manufacturer that is important, as it results from the information that can be taken from the labeling, the instructions for use or the advertising.

The mask itself was not provided with an indication of usability for medical purposes. Also according to its design and presentation, it could not be assumed that the mask could be used for medical purposes: The mask was printed with a drawing – in the style of a comic drawing – of an open mouth with gaps in the teeth on a green background. The packaging of the mask also does not contain any indication of usability for medical purposes.

The fact that the mask may have been displayed at retail along with medical-looking face masks was not attributable to the manufacturer or importer, nor to the wholesaler from Drensteinfurt. In the language of the currently applicable infection protection regulations for protection against new infections with the corona virus, the mask in question is no more than a so-called “everyday mask” in the form of a “textile mouth-nose covering” (cf. Section 3 (1) of the currently applicable North Rhine-Westphalian Corona Protection Ordinance).

The fact that such an “everyday mask” is considered to have a protective effect against the spread of the coronavirus in the opinion of the scientific community, the legislator responsible for the protection against infection and the relevant public does not change the fact that it does not serve any medical purpose according to the manufacturer’s specifications. Also, water and soap would not become “medical devices” because regular hand washing is generally considered and recommended by the competent authorities to have a protective effect against infection with coronavirus.

The wholesaler against whom the claim was made also did not have to make it clear that the “fabric mask” was not a “medical device” when it was distributed. In particular, it is absurd that the relevant public would classify the “everyday mask” in question as belonging to a product category that is specifically regulated by law in terms of consumer protection, protection against infection, health protection or safety.

Marian Härtel
Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.

Tags: ConsumerConsumer protectionRegulationSicherheit

Weitere spannende Blogposts

No more phone numbers necessary in the imprint!

No more phone numbers necessary in the imprint!
10. July 2019

I have already reported on the case in this article and the ECJ has - as so often - agreed...

Read moreDetails

Legal consequence for failure to perform a utility token?

What are Security Tokens and what are Utility Tokens?
19. January 2023

What are utility tokens? Utility tokens are one of the most common variants among blockchain providers. They are intended to...

Read moreDetails

Karlsruhe Higher Regional Court sticks to tough influencer case law; tap tags decisive

Legal form as an influencer? A few hints!
7. November 2022

In a ruling dated September 9, 2020, the OLG Karlsruhe ruled that an influencer must label her posts on Instagram...

Read moreDetails

Email in spam order: Delivered!

Unwanted email advertising by advertising partners
20. May 2019

Yesterday I stumbled upon an interesting ruling by the Supreme Court in Vienna. For Austria, the latter has finally decided...

Read moreDetails

LG Berlin: Multiple contracts require separate order buttons

LG Berlin: Multiple contracts require separate order buttons
3. June 2023

Introduction and explanation of the button solution The convenience of online shopping has undoubtedly revolutionized our buying habits. With just...

Read moreDetails

Advertising with “climate neutral” can lead to a warning notice

Advertising with “climate neutral” can lead to a warning notice
15. November 2022

Advertising with the "climate neutral" logo can have a significant impact on consumers' purchasing decisions. Basic circumstances of the climate...

Read moreDetails

Default “Yes” to cookies invalid!

Default “Yes” to cookies invalid!
7. November 2022

There could soon be a ruling by the European Court of Justice that could startle German website providers who have...

Read moreDetails

Who is affected by the new IT security guideline?

eacdf2e96129370b1608edb115f7bf58
13. August 2024

While vany entrepreneurs in the IT and startup-sector are struggling with the daily challengeschallenges of business developmentare preoccupied with thean...

Read moreDetails

Legal tech: contract generator permissible

Legal tech: contract generator permissible
7. November 2022

An electronic generator of legal documents does not violate the Legal Services Act. This was decided by the 6th Civil...

Read moreDetails
Contractual regulations for no-code/low-code software development
Other

Contractual regulations for no-code/low-code software development

21. May 2025

No-code and low-code platforms enable rapid software development without extensive manual programming. Applications are increasingly being developed on the basis...

Read moreDetails
Erotic content on OnlyFans: Copyright and personality rights protection for creators

Erotic content on OnlyFans: Copyright and personality rights protection for creators

20. May 2025
Goodbye hustle culture? Startup life between 24/7 grind and work-life balance

Goodbye hustle culture? Startup life between 24/7 grind and work-life balance

19. May 2025
Startup buzzwords 2025: Bullshit bingo in marketing German Introduction: Bullshit bingo in marketing German

Startup buzzwords 2025: Bullshit bingo in marketing German Introduction: Bullshit bingo in marketing German

18. May 2025
From the metaverse boom to AI euphoria – a tech lawyer in the hype cycle

From the metaverse boom to AI euphoria – a tech lawyer in the hype cycle

17. May 2025

Podcastfolge

c9c5d7fd380061a8018074c2ca5a81bf

Startups and innovation in Germany – challenges and opportunities

26. September 2024

This insightful podcast episode takes an in-depth look at the startup and innovation landscape in Germany and Europe. The discussion...

Read moreDetails
8ffe8f2a4228de20d20238899b3d922e

Web3, blockchain and law – a critical review

26. September 2024
d5e1e6cad87cb839a9e23af79034bd94

AI in the legal system: Towards a digital future of justice

16. October 2024
d00527fd01b1f807a4f80c0f202069e7

Legal basics for startup founders – how to start on the safe side!

9. November 2024
238a909c26a0302cbd4792cbd18e4922

Global challenges for start-ups – A legal guide

10. October 2024

Video

My transparent billing

My transparent billing

10. February 2025

In this video, I talk a bit about transparent billing and how I communicate what it costs to work with...

Read moreDetails
Fascination between law and technology

Fascination between law and technology

10. February 2025
My two biggest challenges are?

My two biggest challenges are?

10. February 2025
What really makes me happy

What really makes me happy

10. February 2025
What I love about my job!

What I love about my job!

10. February 2025
  • Privacy policy
  • Imprint
  • Contact
  • About lawyer Marian Härtel
Marian Härtel, Rathenaustr. 58a, 14612 Falkensee, info@itmedialaw.com

Marian Härtel - Rechtsanwalt für IT-Recht, Medienrecht und Startups, mit einem Fokus auf innovative Geschäftsmodelle, Games, KI und Finanzierungsberatung.

Welcome Back!

Login to your account below

Forgotten Password? Sign Up

Create New Account!

Fill the forms below to register

All fields are required. Log In

Retrieve your password

Please enter your username or email address to reset your password.

Log In
  • Informationen
    • Ideal partner
    • About lawyer Marian Härtel
    • Quick and flexible access
    • Principles as a lawyer
    • Why a lawyer and business consultant?
    • Focus areas of attorney Marian Härtel
      • Focus on start-ups
      • Investment advice
      • Corporate law
      • Cryptocurrencies, Blockchain and Games
      • AI and SaaS
      • Streamers and influencers
      • Games and esports law
      • IT/IP Law
      • Law firm for GMBH,UG, GbR
      • Law firm for IT/IP and media law
    • The everyday life of an IT lawyer
    • How can I help clients?
    • Testimonials
    • Team: Saskia Härtel – WHO AM I?
    • Agile and lean law firm
    • Price overview
    • Various information
      • Terms
      • Privacy policy
      • Imprint
  • Services
    • Support and advice of agencies
    • Contract review and preparation
    • Games law consulting
    • Consulting for influencers and streamers
    • Advice in e-commerce
    • DLT and Blockchain consulting
    • Legal advice in corporate law: from incorporation to structuring
    • Legal compliance and expert opinions
    • Outsourcing – for companies or law firms
    • Booking as speaker
  • News
    • Gloss / Opinion
    • Law on the Internet
    • Online retail
    • Law and computer games
    • Law and Esport
    • Blockchain and web law
    • Data protection Law
    • Copyright
    • Labour law
    • Competition law
    • Corporate
    • EU law
    • Law on the protection of minors
    • Tax
    • Other
    • Internally
  • Podcast
    • ITMediaLaw Podcast
  • Knowledge base
    • Laws
    • Legal terms
    • Contract types
    • Clause types
    • Forms of financing
    • Legal means
    • Authorities
    • Company forms
    • Tax
    • Concepts
  • Videos
    • Information videos – about Marian Härtel
    • Videos – about me (Couch)
    • Blogpost – individual videos
    • Videos on services
    • Shorts
    • Podcast format
    • Third-party videos
    • Other videos
  • Contact
  • en English
  • de Deutsch
Kostenlose Kurzberatung