• Bijzonderheden van de zaak
    • Nationaal ID: Court of Appeal The Hague, Judgement 200.236.635/01
    • Lidstaat: Nederland
    • Gangbare benaming:N/A
    • Soort beslissing: Rechterlijke beslissing in beroep
    • Datum beslissing: 12/05/2020
    • Gerecht: Gerechtshof Den Haag
    • Onderwerp:
    • Eiser:
    • Verweerder:
    • Trefwoorden: compatative advertising, misleading advertising
  • Richtlijnartikelen
    Misleading and Comparative Advertising Directive, Article 3 Misleading and Comparative Advertising Directive, Article 3 Misleading and Comparative Advertising Directive, Article 4 Misleading and Comparative Advertising Directive, Article 4
  • Koptekst


    In the present case, a company, through its call centre, informed potential purchasers that another company (a direct competitor of its own) manufactured substandard and unreliable products. The Court concluded that this practice, related to comparative advertising, was an unfair commercial practice, even if it was carried out through private telephone conversations.

  • Feiten

    Smienk sells and assembles second-hand stairlifts. Otolift is a longer established manufacturer of stairlifts, which it also assembles. A sister company of Otolift, TipTop Traplifts, sells used Otolift stairlifts. In this case, Smienk provides evidence that Otolofit had told (potential) customers of Smienk that Smienk is unreliable or produces unsafe stairlifts. Smienk also provides the transcript of a telephone conversation between Otolift and a member of Smienk's board of directors, posing as a potential customer of Otolift, and of a report of a detective agency engaged by Smienk containing a similar transcript of a telephone conversation with Otolift. Both transcripts include derogatory statements about Smienk, warnings about Smienk and other statements damaging Smienk's reputation with consumers.

  • Juridische kwestie

    Has Otolift provided derogatory statements about Smienk that constitute misleading comparative advertising within the meaning of Article 6:194a BW?

  • Uitspraak

    Article 6:194a (1) BW concerning comparative advertising must be interpreted in the light of Directive 2006/114. The Court of Appeal sees no reason to interpret Article 6:194a of the Dutch Civil Code, in deviation from the broad definition of Article 2 (a) of the Directive, in such a way that there is only comparative advertising when there are communications that have been made public, and that there is no question of this in the case of communications by telephone to potential clients, even if it concerns only one or a few clients.

    Otolift's assertion that it is not comparative advertising because its employees only responded to questions from customers is of no avail to Otolift, as both from the transcript of the telephone conversation with Smienk’s second potential customer and that of Smienk’s board member with Otolift it follows that the employee of Otolift first inquired as to from which competitor they had received information and then talked ill of Smienk.


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  • Verwante zaken

    Geen resultaten

  • Rechtsleer

    Geen resultaten

  • Resultaat

    The Court of First Instance on good grounds considered Otolift’s statements derogatory and rightly condemned Otolift to rectify these statements on its website.