Misleading and comparative advertising

KEY POINTS

Misleading advertising

Advertisements which mislead or which may mislead the people who receive them are forbidden. The misleading nature of these advertisements could affect the economic behaviour of consumers and traders, or may be detrimental to a competitor.

The misleading nature of advertisements depends on a set of criteria:

• the characteristics of the goods or services (availability, nature or composition, method of manufacture or provision, origin, etc.), the results to be expected from their use, and the results of quality checks carried;
• the price or the manner in which the price is calculated;
• the conditions governing the supply of the goods or services;
• the nature, qualities and rights of the advertiser (identity and assets, qualifications, intellectual property rights, etc.).

Comparative advertising

Comparative advertising explicitly or by implication makes reference to a competitor or competing goods or services.

This type of advertising is only permitted when it is not misleading. It can be a legitimate means of informing consumers of what is in their interests. Therefore, in particular, the comparisons should:

• relate to goods or services which meet the same needs or are intended for the same purpose;
• relate to products with the same designation of origin;
• deal objectively with the material, relevant, verifiable and representative features of those goods or services, which may include price;
• avoid creating confusion between traders, and should not discredit, imitate or take advantage of the trade mark or trade names of a competitor.

Recourse

European Union (EU) countries must ensure that those persons or organisations with a legitimate interest may bring a court action or an administrative appeal against illicit advertising;

Therefore, courts or administrative bodies from EU countries must be able to:

• order the withdrawal of illicit advertising, even in the absence of proof, of actual loss, damage or of an intention of negligence; or
• prohibit illicit advertising which has not yet been published.