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Case Details

Case Details
National ID 390/2014
Member State Malta
Common Name Kram Trading vs Barkov
Decision type Court decision, first degree
Decision date 28/05/2015
Court Civil Court, First Hall
Plaintiff Kram Trading
Defendant Oleg Barkov, exercising trade under the name Barkov Distribution
Keywords advertisement, advertising, advertorial, comparative advertising, false information, misleading advertising

Misleading and Comparative Advertising Directive, link

(1) The burden of proof is on the person claiming there is misleading advertising.
(2) The test is objective and based on what a ‘reasonable reader’ would understand.
Both plaintiff and defendant imported anti corrosion and primer systems. Defendant was using adverts which compared his primer to plaintiff’s. Plaintiff took objection to this, and instituted a case based on Articles 32A and 32B of the Commercial Code (Cap. 13 of the laws of Malta), which implement into Maltese law Articles 3 and 4 of Directive 2006/114/EC. Defendant argued his comparative advertising was in line with the law.
The court noted that Maltese law has accepted that comparative advertising is permitted, as long as in line with the conditions delineated in the law, namely Article 32A and 32B of the Commercial Code (which implement Articles 3 and 4 of Directive 2006/114/EC).
The court concluded that, considering the evidence he had brought forward, the defendant had not invented the advertising which stated his product provided three times more coverage than plaintiff’s. He had not made a false claim as he could sustain his statements with calculations.
The court had to examine whether the advertising deceived or could have deceived the persons to whom it was addressed or who it reached. The plaintiff company had to bring forward some type of evidence that the advertising in question had deceived or was deceiving the persons it was addressed to, or some type of response or feedback from the shops where the flyers in question were being distribution.
The court concluded that the plaintiff company had not provided that the advertising was deceptive or could create confusion on the market. As a result, the advertising did not discredit or denigrate the trade marks, trade names, other distinguishing marks, goods, services, activities, or circumstances of the plaintiff and was therefore permissible.
(1) Who bears the burden of proof with regards to misleading advertising?
(2) What type of test is used to determine whether advertising is misleading?
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Plaintiff’s action was dismissed.