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Misleading advertising Lidl, claim based on own press release

Misleading advertising Lidl, claim based on own press release

Comparative advertising is allowed. Stronger still: comparative advertising should be considered a good thing. By comparative advertising consumers are better informed of the existence of equivalent alternatives. This allows for more competition, thus enabling consumers to purchase comparable products at a better price. Comparative advertising is therefore used to position private label products alongside premium brands. Lidl makes frequent use of this. However, there is a limit, as Lidl experienced with their “Cien Cellular beauty facial cream” campaign.

Comparative advertising is allowed, but it must meet some conditions:
1) the comparison should not be misleading;
2) The comparison is made between equivalent products or services;
3) The comparison is based upon essential, relevant, verifiable and representative characteristics in an objective manner;
4) No confusion is created between a competitor’s products or services;
5) the advertisement is not unnecessarily derogatory or harmful to the competitor’s reputation;
6) products with a designation of origin have the same designation;
7) no unfair advantage is taken from the reputation of a competitor's brand
8) no use is made of counterfeit branded products or services;
9) special deals / temporary prices are clearly and unambiguously stated.

When assessing whether comparable products are concerned, not only identical products are taken into account, but also products that are sufficiently interchangeable. Otherwise comparative advertising makes no sense. The aim is to inform the consumer and to stimulate competition. It is imperative however that comparable products are concerned, and consumer are not mislead.

Lidl sells a facial cream under the name Cien Cellular beauty. In commercials Lidl compares its product with creams from La Prairie. Creams of La Prairie contain the patented ingredient “Cellular Complex”. To promote it’s own products, Lidl claims in its commercials that its face cream contains the same ingredients as La Prairie Cellular Radiance Cream, costing almost € 550! * ".

La Prairie claims this comparison is unjust. In its defence Lidl refers to articles in magazines such as Flair and The Sun. However those articles are based on a press release from Lidl UK itself. In another report submitted by Lidl it is shown that its cream consists of 31 ingredients, that of La Prairie of 81. The claim that the cream contains similar ingredients and is over € 500 cheaper, suggests that consumers get a comparable product at a fraction of the price. Furthermore, the advertising does not mention anything about the qualities or the intended effects of the Cien cream. This is misleading. This comparative advertisement is therefore banmned.

If comparative advertising is done, the advertiser must make sure that it can prove the claim with independent research. The products don’t have to be identical. An alternative is also allowed, only if it can only be objectively compared on main points. The comparison must be presented in an objective manner. A claim based, as in the above axamble, on publications from one’s own press release is obviously nonsensical. Support the statement with a verifiable research in which it is clearly indicated, what exactly is being compared and state this clearly in the advertisement. (Source image: Rechtspraak.nl- decision court)

advertising-law

Copyright and advertising law
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IP Knowledge Quiz Designs

The plaintiff specializes in online sales of children's bicycles. In safeguarding its rights, the company has registered the design of these bicycles under Community Design. Through a multiple design registration, the company secures the rights for 10 new versions of its children's bicycles simultaneously under Community Design. Subsequently, when the defendant introduces a similar bicycle, legal proceedings ensue. Among the various claims, the plaintiff alleges infringement of its design rights, which in turn is contested by the defendant. A design must possess novelty and individual character. The defendant states that the design lacks novelty, as elements of this design are already present in various existing bicycles. Essentially, the defendant's bicycles reproduce these elements, resulting in a lack of individual character. According to the defendant, the community designs are thus invalid. Even If the plaintiff's designs should be valid, the defendant argues that its bicycle deviates sufficiently. The defendant argues that the plaintiff has sought protection for more or less similar designs in the multiple design registration. Apparently, the plaintiff believes that these designs differ enough to create a different overall impression. The defendant's bicycles deviate just as much, thus creating a different overall impression (the so-called doctrine of equivalents argument). The question arises: are the plaintiff's bicycles valid designs despite comprising known aspects from various bicycles, or does the defendant's design exhibit sufficient deviation, thereby enabling the invocation of the doctrine of equivalents concerning the multiple design registration? The court determines that designers of children's bicycles enjoy considerable freedom in their designs. Consequently, if another bicycle lacks significant distinctions, it will quickly evoke a similar overall impression for the informed user, thereby lacking individual character. The comparison is drawn between the new design (the AMIGO bicycles from T.O.M.) and an older existing design (bicycle). To prove that a design is not new, you cannot, as Prijskiller (the defendant) asserts, mosaic together various elements. Therefore, as a defendant, you cannot argue that a design is not new because its characteristics are present in various different products (see also the judgment Karen Millen). If, as a designer, you combine different aspects from multiple designs for the first time into a new product, then this is simply a new and valid design. This is the case with the AMIGO bicycle. The design is upheld as valid. The AMIGO Magic bicycle features a unique tubular frame, rendering it novel. The bicycle is further distinguished by the name MAGIC, the chain guard design, and accessories such as a basket, handlebar streamers, and doll seat. Prijskiller contends that its frame shape differs (being thicker) and that the drawings are positioned differently. Additionally, Prijskiller highlights the distinct color scheme; however, TOM has registered the designs in line drawings, thus disregarding this element in the evaluation. Nevertheless, several similarities are apparent. Both bicycles exhibit an almost identical pattern of butterflies and flowers, positioned nearly identically on the frame. Furthermore, the name MAGIC is depicted in the same font and placement on the chain guard. Consequently, this bicycle fails to evoke a different overall impression for the informed user. The designer's extensive creative freedom in designing children's bicycles means that the differences highlighted by Prijskiller are minor and inconspicuous. Prijskiller's invocation of the doctrine of equivalents is likewise dismissed. The court opines that this case pertains to models concurrently deposited by T.O.M. This circumstance precludes the invocation of the "doctrine of equivalents" because, in compliance with the regulations regarding novelty, individual character, and the grace period, the various models cannot diminish each other's novelty or individual character, nor their scope of protection. In essence, in simultaneous (multiple) deposits, the "doctrine of equivalents" holds little significance. Consequently, these 2Cycle Magic bicycles fail to impart a different overall impression for the informed user. The designer's extensive freedom in designing children's bicycles and the minor differences highlighted by Prijskiller render the infringement claim upheld.
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