Case law

Misleading and Comparative Advertising Directive, Article 3

1) It is not necessary that an illicit publicity action is executed by a direct competitor so that said action can be considered an unfair competition act. It is enough with the publicity referring to activities that compete in the market.

2) It is not necessary to prove that the publicity has damaged the plaintiff so that the same qualifies as an unfair competition act. It is enough with the action to be suitable for creating such damages (potential damages).

The defendant disseminated publicity promoting a radio program after the contract with the program's producer was terminated and the program producer had entered into a new agreement with another media conglomerate. The defendant had replaced the program for another one of similar content but which was completely new.

The court declared that the reform the first instance decision publicity broadcasted by the defendant is confusing and misleading as there is bad faith and unloyal behavior, as the publicity is misleading.

1) Is it necessary that illicit publicity is made by competitors so that it is deemed to be an unfair competition act?

2) Is it necessary that the publicity produces an effective damage to third parties so that it is considered to be an unfair competition act?

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As the publicity had at the time of the judgement been already removed, the defendant was ordered to publish the decision in the media.