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Case Details

Case Details
National ID 415/2001/1
Member State Malta
Common Name World Marketing Services Limited vs Crosscrafts Company Limited
Decision type Other
Decision date 11/04/2001
Court Civil Court, First Hall
Subject
Plaintiff World Marketing Services Limited
Defendant Crosscrafts Company Limited
Keywords advertisement, advertorial, comparative advertising

Misleading and Comparative Advertising Directive, link

(1) Although comparative advertising is allowed, it cannot occur by disparaging the competitor’s goods, as such disparaging remarks might have the intention to harm the proprietor of the said goods (the competitor).
Plaintiff had sought out a warrant of prohibitory injunction against defendant, who was a competitor of the plaintiff which also imported and distributed food processors. Plaintiff claimed defendant was unfavourably comparing plaintiff’s product to defendant’s, in breach of the rules on unfair competition (found in the Commercial Code (Cap. 13 of the laws of Malta). Even though plaintiff’s product was not mentioned by name it was clearly identifiable. Plaintiff sought to stop defendant from doing so and from using its product for demonstrations. Defendant argued that it was acting in terms of Articles 49 and 50 of the Consumer Affairs Act (which, at the time, implemented i Articles 2a and 3a of Directive 94/450/EEC into Maltese law), and therefore it was allowed to carry out comparative advertising.
The court held that Article 49 of the Consumer Affairs Act (which, at the time, implemented Article 2a of Directive 94/450/EEC into Maltese law) affected the rules in the Commercial Code on unfair competition and therefore comparative advertising is today allowed, provided it is in line with Article 50 of the said Act (which at the time implemented Article 3a of Directive 94/450/EEC). In this regard, whether the facts advertised were true or not has relevance, as misrepresentation of facts would amount to misleading advertising.
Although these provisions of the Act were said to prevail of the provisions of the Commercial Code, this did not mean that the provisions of the Code on unfair competition where no longer applicable.
The court made reference to the Commission’s Explanatory Memorandum to the Draft of 1991 (COM (91) 147 final), and noted that there was reference to not discrediting or denigrating the goods of a competitor when undertaking comparative advertising.
The court concluded that the defendant was indeed denigrating the plaintiff’s product and was therefore found to have acted in breach of both the comparative advertising provisions and the unfair competition provisions.
(1) What are the limits of comparative advertising?
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The warrant of prohibitory injunction was granted.