It was held that:
(1) The claim "The first patch for herpes with active properties" was proven by the defendant.
(2) There is no contradiction between the claims "The first patch for herpes that is auto-dissolving", "Herpatch dissolves automatically" and "(...) a patch that seals and protects the wound" because the facts were proven and they were not ambiguous or contradictory in a way that could mislead the consumer;
(3) Contextually, it is clear that the claim "Relieves pain" refers to the pain caused by the virus and the claim "Totally painless" refers to the application/removal of the patch, a difference which is clear and understandable by the average consumer to whom the message is directed and so the claims do not create doubts or ambiguity and are sufficiently proven.
(4) The defendant’s advertisement campaign does not amount to comparative advertising, because the claims consist of generic comparisons applicable to all of the directly competing products, making it impossible for the average consumer to identify the plaintiff’s patch.
URL: http://www.icap.pt/icapv2/icap_site/deliberacao_detalhe.php?AG4JPQ51=ADotela9Xr1&AHAJJg5i=&AGoJNwtela9Xr1tela9Xr1=ADAJag4y
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