Keywords

Summary



Keywords

1. Approximation of laws — Misleading and comparative advertising — Directive 84/450 — Comparative advertising — Definition — Same rules to be applied to the various elements of comparison — (Council Directive 84/450, Art. 2(2))

2. Approximation of laws — Misleading and comparative advertising — Directive 84/450 — Comparative advertising — Stricter national provisions on misleading advertising — Not applicable to comparative advertising — (Council Directive 84/450, Arts 3a and 7)

3. Approximation of laws — Misleading and comparative advertising — Directive 84/450 — Comparative advertising — Indication of a competitor's trade mark — Option open to the advertiser — Limits — (Council Directive 84/450, Art. 3a(1))

4. Approximation of laws — Misleading and comparative advertising — Directive 84/450 — Comparative advertising — Purchase of the products compared through different distribution channels — Whether permissible — (Council Directive 84/450, Art. 3a(1))

5. Approximation of laws — Misleading and comparative advertising — Directive 84/450 — Comparative advertising — Test purchase by the advertiser from a competitor before the commencement of his offer — Whether permissible — (Council Directive 84/450, Art. 3a)

6. Approximation of laws — Misleading and comparative advertising — Directive 84/450 — Comparative advertising — Reproduction in the advertising message of the name and logo of a competitor with a picture of its shop front — Whether permissible — (Council Directive 84/450, Art. 3a(1)(e))

7. Approximation of laws — Misleading and comparative advertising — Directive 84/450 — Comparative advertising — Price comparison — No discrediting of a competitor even where attention is drawn to a price difference on a product that is greater than the average difference across products as a whole — (Council Directive 84/450, Art. 3a(1)(e))

Summary

1. The definition of comparative advertising in Article 2(2) of Directive 84/450 on misleading and comparative advertising, as amended by Directive 97/55, covers all forms of comparative advertising, so that, in order for there to be comparative advertising, it is sufficient for there to be a statement referring even by implication to a competitor or to the goods or services which he offers. Therefore, in the context of Directive 84/450, it is not necessary to establish distinctions in the legislation between various elements of comparison, that is to say the statements concerning the advertiser's offer, the statements concerning the competitor's offer, and the relationship between those two offers.

see paras 35, 37

2. Article 7(2) of Directive 84/450 on misleading and comparative advertising, as amended by Directive 97/55, precludes the application to comparative advertising of stricter national provisions on protection against misleading advertising as far as the form and content of the comparison is concerned, without there being any need to establish distinctions between the various elements of the comparison, that is to say statements concerning the advertiser's offer, statements concerning the competitor's offer and the relationship between those offers.

That directive carried out an exhaustive harmonisation of the conditions under which comparative advertising in Member States might be lawful, so that such lawfulness must be assessed solely in the light of the criteria laid down by the Community legislature.

see paras 42, 44, operative part 1

3. In the context of comparative advertising, where there is compliance with the conditions set out in Article 3a(1) of Directive 84/450 on misleading and comparative advertising, as amended by Directive 97/55, namely that such advertising does not create confusion in the market place between the brand names of the advertiser and those of a competitor, that it does not discredit or denigrate the brands of a competitor, and that it does not take unfair advantage of the reputation of a competitor's brand, it is open to an advertiser to state the trade mark of a competitor's products. There are, however, cases where the brand name, of the products may significantly affect the buyer's choice, and where the comparison concerns rival products whose respective brand names differ considerably in the extent to which they are known the omission of the better-known brand name goes against Article 3a(1)(a) of Directive 84/450, which lays down one of the conditions for comparative advertising to be lawful. It is for the national court to verify in each case, having regard to all the relevant factors of the case which is brought before it, whether the conditions for comparative advertising to be lawful are met, taking into account the presumed expectations of an average consumer who is reasonably well informed and reasonably observant and circumspect.

see paras 47, 49, 53, 55, operative part 2

4. Article 3a(1) of Directive 84/450 on misleading and comparative advertising, as amended by Directive 97/55, does not preclude compared products from being purchase through different distribution channels. The conditions set out in that provisions under which comparative advertising may be lawful do not include a requirement that the compared products be obtained through the same distribution channels. Moreover, such a condition would be contrary both to the objectives of the internal market and to those of Directive 84/450.

see paras 61-62, operative part 3

5. Article 3a(1) of Directive 84/450 on misleading and comparative advertising, as amended by Directive 97/55, does not preclude an advertiser from carrying out a test purchase with a competitor before his own offer has even commenced, where the conditions for the lawfulness of comparative advertising set out therein are complied with. It is for the national court to verify whether the advertising message complied with those conditions.

see paras 70-71, operative part 4

6. Article 3a(1)(e) of Directive 84/450 on misleading and comparative advertising, as amended by Directive 97/55, does not prevent comparative advertising, in addition to citing the competitor's name, from reproducing its logo and a picture of its shop front, if that advertising complies with the conditions for lawfulness laid down by Community law.

see paras 83-84, operative part 5

7. A price comparison does not entail the discrediting of a competitor, within the meaning of Article 3a(1)(e) of Directive 84/450 on misleading and comparative advertising, as amended by Directive 97/55, either on the grounds that the difference in price between the products compared is greater than the average price difference or by reason of the number of comparisons made.

see para. 84, operative part 5