EU Competition Law
- The Paris Convention imposes a general obligation to offer protection against
unfair competition and it does so on the basis of the broad concept of honest
practices in industrial and commercial matters
- Directive 2006/114/EC
o The context is predominantly B2B
o Advertising: one of the market
activities commonly used. The
directive deals with misleading and
comparative advertising and on unfair commercial practices affecting
businesses
o Why is advertising regulated? because responsible ads are good for
people, society and advertisers
Responsible advertising is an essential part of modern life
Provides consumers with value and choice
Entertains, informs and educates
Encourages social responsibility eg not drinking and driving
Has economic value by funding media, sports and culture
Helps consumers to trust and be confident
o Comparative advertising
Any advertising which: a) identifies a competitor, b) identifies a good
or service offered by a competitor EITHER by explicitly naming or by
implication
Conditions: permitted by EU law under Article 4 of the Directive
when the following conditions are met:
Ad is not misleading
Ad compares ‘like with like’ – objective comparison
Ads must objectively compare important feature of the
products or services concerned
Ads must not discredit other companies’ trademarks
Ad does not take unfair advantage of the reputation of
distinguishing marks of a competitor
It does not create present goods as imitation or replicas of
goods bearing a protected trademark
Ads must not create confusion among traders
COMPARATIVE ADVERTISING WHICH DOES NOT COMPLY
WITH ANY OF THE INDICATED CONDITIONS IS PROHIBITED
BECAUSE IT DISTORTS COMPETITION
, o Definitions: Article 2 (Directive)
‘misleading advertising’ means any advertising which in any way,
including its presentation, deceives or is likely to deceive the persons
to whom it is addressed or whom it reaches and which, by reason of
its deceptive nature, is likely to affect their economic behaviour or
which for those reasons, injures or is likely to injure a competitor
‘comparative advertising’ means any advertising which explicitly or by
implication identifies a competitor o goods or services offered by a
competitor
o Examples:
Generic comparison = fairy lasts 2x longer than the next best-selling
brand
Aggressive US markets = big mac vs whopper / pepsi vs coca-cola
Misleading advertising is prohibited it may lead the consumer to
take decisions prejudicial to him when buying goods or other property
or using services
Key elements:
The capacity to deceive the person to whom it is addressed
The capacity to distort the economic behaviour
The capacity to harm the interest of competitors
When is advertising misleading? Key features to take into account
Execution
Method and date of manufacture
Quantity
Geographical origin
Price
Conditions on which the goods are supplied, and services
provided
Nature
Attributes and rights of thee advertiser
Identity
Qualifications
Ownership rights or awards and distinctions received by the
advertiser
How to avoid misleading advertising
Ads must be obviously identifiable as being ads
Ads must not materially mislead or be likely to do so
Ads must not mislead thee consumer by omitting material
information
Advertisers must hold documentary evidence to back up those
claims that a consumer can expect to be proven
Examples:
- The Paris Convention imposes a general obligation to offer protection against
unfair competition and it does so on the basis of the broad concept of honest
practices in industrial and commercial matters
- Directive 2006/114/EC
o The context is predominantly B2B
o Advertising: one of the market
activities commonly used. The
directive deals with misleading and
comparative advertising and on unfair commercial practices affecting
businesses
o Why is advertising regulated? because responsible ads are good for
people, society and advertisers
Responsible advertising is an essential part of modern life
Provides consumers with value and choice
Entertains, informs and educates
Encourages social responsibility eg not drinking and driving
Has economic value by funding media, sports and culture
Helps consumers to trust and be confident
o Comparative advertising
Any advertising which: a) identifies a competitor, b) identifies a good
or service offered by a competitor EITHER by explicitly naming or by
implication
Conditions: permitted by EU law under Article 4 of the Directive
when the following conditions are met:
Ad is not misleading
Ad compares ‘like with like’ – objective comparison
Ads must objectively compare important feature of the
products or services concerned
Ads must not discredit other companies’ trademarks
Ad does not take unfair advantage of the reputation of
distinguishing marks of a competitor
It does not create present goods as imitation or replicas of
goods bearing a protected trademark
Ads must not create confusion among traders
COMPARATIVE ADVERTISING WHICH DOES NOT COMPLY
WITH ANY OF THE INDICATED CONDITIONS IS PROHIBITED
BECAUSE IT DISTORTS COMPETITION
, o Definitions: Article 2 (Directive)
‘misleading advertising’ means any advertising which in any way,
including its presentation, deceives or is likely to deceive the persons
to whom it is addressed or whom it reaches and which, by reason of
its deceptive nature, is likely to affect their economic behaviour or
which for those reasons, injures or is likely to injure a competitor
‘comparative advertising’ means any advertising which explicitly or by
implication identifies a competitor o goods or services offered by a
competitor
o Examples:
Generic comparison = fairy lasts 2x longer than the next best-selling
brand
Aggressive US markets = big mac vs whopper / pepsi vs coca-cola
Misleading advertising is prohibited it may lead the consumer to
take decisions prejudicial to him when buying goods or other property
or using services
Key elements:
The capacity to deceive the person to whom it is addressed
The capacity to distort the economic behaviour
The capacity to harm the interest of competitors
When is advertising misleading? Key features to take into account
Execution
Method and date of manufacture
Quantity
Geographical origin
Price
Conditions on which the goods are supplied, and services
provided
Nature
Attributes and rights of thee advertiser
Identity
Qualifications
Ownership rights or awards and distinctions received by the
advertiser
How to avoid misleading advertising
Ads must be obviously identifiable as being ads
Ads must not materially mislead or be likely to do so
Ads must not mislead thee consumer by omitting material
information
Advertisers must hold documentary evidence to back up those
claims that a consumer can expect to be proven
Examples:
