Case law

Misleading and Comparative Advertising Directive, Article 4

A humerous or ironical reference to a competitor or a competitor's products in comparative advertising, which does not mock or ridicule the competitor nor is understood as literal or serious and thus not pejorative, is not considered unfair comparative advertising.

The defendant advertised using comparative advertising in form of an advertising spot, in which a customer of a newstand is displayed as a person who shares primitive living conditions and simple life style. This customer wants to buy the newspaper of the plaintiff (the newspaper, he always buys at the newsstand). During the conversation with the seller the customer talks in simple, primitive language. Thus, the viewer of this advertising spot gets the opinion that customers of the plaintiff's newspaper are dumb and primitive people.

The plaintiff considers this to be an unfair commercial practice and seeks for omission, exchange of information and determination of its right to assert damages of the defendant.

The defendant seeks for dismissal of the claim.

The court held that a humerous or ironical reference to a competitor or a competitor's products in comparative advertising, which does not mock or ridicule the competitor nor is understood as literal or serious and thus not pejorative, is not considered unfair comparative advertising. Thus, this advertising was not a unfair commercial practice.

Is a humerous or ironical reference to a competitor or a competitor's products in comparative advertising considered unfair comparative advertising?

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The statement of claim was dismissed.