In the appeal the defendant firstly argued that the advertising slogan ’The best from Bulgaria” was to be interpreted in the context of the respective categories of food products which were known as traditional Bulgarian goods, hence the slogan was intended to emphasize that as a general rule these types of goods were the best products which the country offered in the food industry. However, this position was not accepted by the court with the argument that the food products were promoted under their specific brands, accordingly not the general type of food products but the specific items with their specific brands were advertised as ‘the best.”
The defendant also argued that the superlative ‘best’ used in the advertising was not a factual statement but expressed its subjective opinion on the quality of the goods offered for sale and this was not likely to mislead the average consumer who is reasonably well informed, experienced, observant and critical and acts in accordance with his own taste and preferences. However, the court dismissed this position as unfounded with the reasoning that the average consumer was not familiar with the food products under these brands and with their quality characteristics, therefore he was likely to be misled by the advertisement. The court continued to state that the superlative ‘best” was likely to be perceived as a mere exaggeration only if this type of advertisement was used by a starting or not so well-known retail chain, whereas in the present case this indication was used by one of the biggest supermarket chains in Europe, hence the slogan was perceived as a strong competitive challenge that would affect the economic behaviour of consumers.
The court also ruled that the defendant failed to furnish evidence in accordance with Article 7(a) of Directive 2006/114 as to the accuracy of the factual claim about supremacy of the advertised goods over the same goods offered by other competitors. The argument of the defendant that this slogan was a subjective opinion which was objectively unprovable was considered by the court as admission of the fact that the advertising claim was incorrect and misleading. It stressed that when conducting an assessment of the misleading character of the advertising it was irrelevant whether the deception resulted from false claims or a subjective opinion.
In view of the above, the Supreme Administrative Court confirmed that the conclusion of the defendant about the misleading character of this advertising was correct.
URL: http://www.sac.government.bg/court22.nsf/d038edcf49190344c2256b7600367606/647c816272b97ca3c2257f46002f2f19?OpenDocument
Пълен текст: Пълен текст