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ECJ provides guidance as to scope of Comparative Advertising Regulations

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The ruling stems from a reference made by the Belgian Court of Appeal in relation to a case brought by Comité Interprofessionnel du Vin de Champagne (CIVC) and Veuve Clicquot Ponsardin SA, against De Landtsheer Emmanuel SA.

Landtsheer launched a new type of beer made using a process similar to that used for sparkling wine. In order to highlight this its packaging included terms such as ‘BRUT RÉSERVE’, ‘La première bière BRUT au monde’ (‘The first BRUT beer in the world’), ‘Bière blonde à la méthode traditionnelle’ (‘Traditionally brewed light beer’). It also included ‘Reims-France’ together with reference to the winegrowers of Reims and Épernay. In addition to this as part of its launch it used the phrase ‘Champagnebier’ to indicate that it was made using the champagne method.

CIVC and Veuve Clicquot sought an prohibtion prevent Landtsheer from using the abive words claiming that they were misleading and in breach of the Comparative advertising regulations. It was successful in respect of the words “Méthode traditionnelle’, and the designation of origin ‘Champagne’, the indication of provenance ‘Reims‑France’, the references to the winegrowers of Reims and Épernay and to the method of producing champagne.” But not in respect of the words/ phrases“ ‘BRUT’, ‘RÉSERVE’, ‘BRUT RÉSERVE’ and ‘La première bière BRUT au monde’.”

Landtsheer appealed in relation to all the terms except the designation of champagne and CIVC and Veurve Clicquot crossed appealed against the decision in relation to the words against which it was not successful.

As a result the Court of Appeal referred the following question to the ECJ for guidance:

“Does the definition of comparative advertising cover advertisements in which the advertiser refers only to a type of product, so that in those circumstances such advertisements must be regarded as referring to all undertakings which offer that type of product, and each of them can claim to have been identified?”

The ECJ referred to Article 2(2a) of the directive, which states that ‘comparative advertising’ means any advertising which explicitly or by implication identifies a competitor or goods or services offered by a competitor.

It followed this up by stating that “the mere fact that an undertaking solely refers in its advertisement to a type of product does not mean that the advertisement in principle falls outside the scope of the directive. Such an advertisement is capable of being comparative advertising provided a competitor or the goods or services which it offers may be identified as actually referred to by the advertisement, even if only by implication.” It further asserted that it was irrelevant that it could refer to a number of competitors.

It therefore concluded that “the answer to the first question must therefore be that Article 2(2a) of the directive is to be interpreted as meaning that a reference in an advertisement to a type of product and not to a specific undertaking or product can be considered to be comparative advertising where it is possible to identify that undertaking or the goods that it offers as being actually referred to by the advertisement. The fact that a number of the advertiser’s competitors or the goods or services that they offer may be identified as being in fact referred to by the advertisement is of no relevance for the purpose of recognising the comparative nature of the advertising.”


About the Author

Lawdit Solicitors offer services and advice for litigation, commercial contracts, Intellectual Property and IT legal agreements. We are experts in commercial law with a heavy emphasis on Intellectual Property, Internet and e-commerce law. Lawdit is a member of the International Trademark Association, the Solicitors' Association of Higher Court Advocates and we are the appointed Solicitors to the largest webdesign association in the world, the United Kingdom Website Designers Association.


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Article Published/Sorted/Amended on Scopulus 2007-05-01 21:57:25 in Legal Articles

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