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



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IP quiz Trademarks

Puma is one of the bigger sports and lifestyle brands in the world. The core-business is the design, development and sale of (sports) shoes, (sports) clothing and accessories. In 1960, Puma registered an international trademark for a device designed in 1958: the formstrip. Since then, Puma has registered approximately 90 formstrip trademarks with validity in the Benelux or the European Union. Puma claims that this is a serial mark. Monshoe is a wholesaler of women's shoes and related products. The company designs and develops Monshoe shoes which it largely markets itself. Monshoe sells its women's shoes under the brands Shoecolate and Pearlz. The shoe Shoecolate is offered in various colour combinations. Puma claims that Monshoe infringes its well-known formstrip trademark. Monshoe contradicts this and states that the average consumer will not perceive the device of Monshoe on the sneakers as a trademark. And if the public will recognize a trademark in the decoration, it will not make the connection to Puma. According to Monshoe, the formstrip logo is not a well-known trademark within the meaning of the BVIE and the UMVo. There is no likelihood of confusion because the sign does not or hardly evoke any association with Puma among the public. In light of the above, who is right? Does this constitute decorative use or linking to a well-known trademark?