Unfair Commercial Practices Directive, Chapter 2, Article 5, 2., (b) Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1.

An advertisement, which uses exaggerated statements, does not constitute a misleading commercial practice when such advertisement is targeted specifically at consumers pertaining to a certain group which is considered to understand the exaggeration.

The plaintiff, a medical instruments and machines seller, argued in its first degree claim that its company is the biggest Greek company representing foreign companies in the market of sale and service of medical equipments of high technology. The plaintiff also claimed that the first defendant, operating a competitive company, used misleading advertisements using unfair competition practices against the plaintiff, contrary to fair transactional ethics.

Based on the above facts, the plaintiff claimed that due to the damage to its reputation it had suffered non pecuniary losses. In addition, it claimed that the defendants should be prohibited from repeating the specific or similar to the specific misleading advertisement in the future.

During the proceedings in first instance before the court, it was proved among other facts that the companies have a competitive relationship; regardless from their ranking within the relevant transactional circle, they are active in the same market place and the products they trade address to the same clients. In February 2009 the first defendant, legally represented by the second defendant, published an advertisement in a very famous professional magazine of medical technology. In this advertisement the defendant claimed that as from the date of its establishment it had achieved to reach 100% of the orders made for X-ray therapeutic machines from customers in Greece and Cyprus. The advertisement was not accurate since it was proven the plaintiff was also active by supplying the private and the public sector within the same territory with X-ray therapeutic machines at the same time.

The Court of First Instance dismissed the claim due to lack of essential basis and had ordered the plaintiff to pay the judicial costs of the first defendant. The plaintiff appealed to the decision of the first degree for non-correct application of law and false proof estimation.

The court held that the statement used by the defendant in its advertisement were intended to improve its competitive position in the specific medical supply market against its competitor.

However, this message was not capable to mislead the specific audience it was targeted to. The perception of the average member of this specific group of consumers, which has the usual information and is reasonably cautious and informed about the circumstances of this specific market, could not be misled by the aforementioned statement. Consequently, this advertisement was unable to lead the persons to whom it was addressed, to take a transactional decision that they would not have taken otherwise.

The exaggeration used in the advertisement’s allegations was immediately comprehensible by the readers of the magazine and by the recipients of the advertising message.

Therefore it could not have been a misleading advertisement. The court used as a criterion the awareness of the average consumer of this specific market which has readily available the usual information and which is reasonably careful and informed in relation to the companies operating in that market.  

Does an advertisement, which uses exaggerated statements, constitute a misleading commercial practice when such advertisement is targeted specifically at consumers pertaining to a certain group which is considered to understand the exaggeration?

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The appeal was rejected.