Advertising law

2016

 

IPPT20161026, CJEU, Canal Digital

Consideration should be given to the context in which the practice takes place when assessing whether a commercial practice must be considered as a misleading omission. Dividing the price of a product into several components and highlighting one of them must be regarded as misleading. Dividing the price of a product into several components and highlighting one of them must be regarded as misleading. Article 7(4) of Directive 2005/29 contains an exhaustive list of the material information that must be included in an invitation to purchase.

 

IPPT20160922, CJEU, Breitsamer und Ulrich v Landeshauptstadt München

Every individual portion of honey closed by an aluminium seal supplied to mass caterers, constitutes a ‘pre-packaged foodstuff’ where the mass caterers sell those portions separately or as part of pre-prepared meals for an all-inclusive price

 

IPPT20160714, CJEU, Verband Sozialer Wettbewerb v Innova Vital

Health claims in food commercials fall within the scope of Regulation 1924/2006, even when the commercial is not aimed at the consumers but at health professoinals. Food business operators could avoid the obligations of regulation 1924/2006 by addressing the consumer through a health professional.

 

IPPT20160217, CJEU, Sanoma v Viestintävirasto

Advertising Law: A split screen that shows the closing credits of a television programme in one column and a list presenting the supplier’s upcoming programmes in the other, in order to separate the programme which is ending from the television advertising allowed when it meets the requirements set out in Article 19(1) Audiovisual Media Services Directive. Sponsorship signs shown in programmes other than the sponsored programme must be included in the maximum time for the broadcasting of advertising per clock hour, set in Article 23(1) of the directive. When a Member State has not made use of the power to lay down a stricter rule than established by Article 23(1) of the Audiovisual Media Services Directive, ‘black seconds’ have to be included in the maximum time for the broadcasting of television advertising per clock hour.

IPPT20160504, CJEU, Pillbox v Secretary of State for Health
No factors of such a kind as to affect the validity of Article 20 of Directive 2014/40 on the manufacture, presentation and sale of tobacco and related products.  

 

2015

 

IPPT20150115, CJEU, Air Berlin v Bundesverband
Indication of final price: In a computerised booking system, the final price to be paid must be indicated whenever the prices of air services are shown, not only for the air service specifically selected by the customer, but also for each air service in respect of which the fare is shown 

 

2014

 

IPPT20140313, CJEU, Posteshop

Misleading advertising: misleading advertising and unlawful comparative advertising are two independent infringements. Divergence between languages: where there is a divergence between various language versions of a European Union text, the provisions in question must be interpreted by reference to the general scheme and the purpose of the rules of which they form part.

 

2013

 

IPPT20130711, CJEU, BEST v Visys
Use of domain name and metatags can be covered by the term “advertising,” the registration of a domain name cannot. 

 

IPPT20130718, CJEU, Green Swan
Health can also be disease risk claim without claim that risk factor is ‘significantly’ reduced: a health claim need not necessarily expressly state that the consumption of a category of food, a food or one of its constituents ‘significantly’ reduces a risk factor in the development of a human disease.

Commercial communication may constitute a trade mark or brand name provided that it complies with requirements in applicable legislation: It is for the national court to ascertain, having regard to all the legal and factual considerations of the case before it, whether that communication is indeed a trade mark or brand name thus protected. 

 

2012

 

IPPT20121018, CJEU, Purely Creative
Unfair commercial practice when giving the false impression that consumer has already won prize, while consumer has to incur (minimal) costs first to claim the prize

 

IPPT20120906, CJEU, Deutsches Weintor v Land Rheinland-Pfalz

‘Easily digestible’ accompanied by reference to reduced acidity is a prohibited “health claim” for wine. Prohibition of a correct claim warranted by the requirement to ensure a  high level of health protection for consumers

 

IPPT20120712, CJEU, Hit Larix v Bundesminister

Prohibition of advertising games of chance permitted if other Member State does not provide equivalent protection of gamblers

 

2011

 

IPPT20110609, CJEU, Alter Channel

Surreptitious advertising: intended by broadcaster to serve advertising: that the provision of payment or of consideration of another kind is not a necessary condition for establishing the element of intent in surreptitious advertising

 

IPPT20110505, CJEU, Novo Nordisk v Ravimiamet

Advertising for medicinal products for doctors and pharmacists also extends to quotations taken from medical journals or other scientific works. Prohibited: claims which conflict with the summary of product characteristics; but supplemental information may be permitted.

 

IPPT20110505, CJEU, MSD v Merckle

Advertising for medicinal products: Not prohibited: faithful reproduction of packaging and leaflet information. Prohibited: selected or rewritten information since such manipulation of information can be explained only by an advertising purpose

 

2010

 

IPPT20101118, CJEU, Lidl v Vierzon Distribution

Comparative advertising: sufficient degree of interchangeability. Misleading comparison: (i) if it is found, that the decision to buy on the part of a significant number of consumers to whom the advertisement is addressed may be made in the mistaken belief that the selection of goods made by the advertiser is representative of the general level of his prices as compared with those charged by his competitor, or (ii) if it is found that, for the purposes of a comparison based solely on price, food products were selected which, nevertheless, have different features capable of significantly affecting the average consumer’s choice, without such differences being apparent from the advertising concerned. Verifiability of comparative advertising

 

IPPT20100708, CJEU, Sjöberg & Gerdin

Stricter penalties for promoting foreign gambling precluded: that Article 49 EC must be interpreted as precluding legislation of a Member State subjecting gambling to a system of exclusive rights, according to which the promotion of gambling organised in another Member State is subject to stricter penalties than the promotion of gambling operated on national territory without a licence. It is for the referring court to ascertain whether that is true of the national legislation at issue in the main actions. Prohibition on advertising of foreign gambling not precluded

 

IPPT20100325, CJEU, BergSpechte v Trekking.at Reisen

Use of trade marks as keywords in search engine advertising service: Proprietor is entitled to prohibit in the case where that ad does not enable an average internet user, or enables that user only with difficulty, to ascertain whether the goods or services referred to therein originate from the proprietor of the trade mark or an undertaking economically connected to it or, on the contrary, originate from a third party.

 

IPPT20100323, CJEU, Google Adwords

Use of trade marks as keywords in search engine advertising service: That the proprietor of a trade mark is entitled to prohibit an advertiser from advertising, on the basis of a keyword identical with that trade mark which that advertiser has. No use of the sign by internet referecing service provider. Internet referencing service provider not liable when it has played a passive role.

 

2009

 

IPPT20090618, ECJ, L'Oreal v Bellure

Unfair advantage where the third party seeks to ride on the coat-tails of the mark with a reputation in order to benefit from the power of attraction, the reputation and the prestige of that mark and to exploit, without paying any financial compensation, the marketing effort expended by the proprietor of the mark. The proprietor of a trade mark is entitled to prevent the use by a third party, in an unlawful comparative advertisement even where such use is not capable of jeopardising the essential function of the mark.

 

IPPT20090402, ECJ, Damgaard

Dissemination by a third party of information about a medicinal product, including its therapeutic or prophylactic properties, may be regarded as ad-vertising, even though the third party in question is acting on his own initiative and completely independently, of the manufacturer and the seller of such a medicinal product.

 

2008

 

IPPT20080612, ECJ, O2 v Hutchinson 3G

Use of a mark in comparative advertisement is not permitted when there is likelihood of confusion. The proprietor of a registered trade mark is not entitled to prevent the use of the mark in comparative advertising where such use does not give rise to a likelihood of confusion.  

 

IPPT20080313, ECJ, Schneider v Rheinland-Pfalz

The use of a particular relating to the production or ageing method or the quality of a wine may be permitted under those provisions only if there is no risk that it will mislead the persons to whom it is addressed by creating confusion between that particular and the other traditional terms.

 

IPPT20080313, ECJ, Doulamis

National legislation prohibiting advertising of dental care services permissible. 

 

2007

 

IPPT20071108, ECJ, Ludwigs Apotheke v Juers Pharma

Free movement of goods – Articles 28 EC and 30 EC – Articles 11 and 13 of the EEA Agreement – Imported medicinal products not authorised in the importing State – Prohibition of advertising – Directive 2001/83/EC.

 

IPPT20071108, ECJ, Gintec

Directives 2001/83/EC and 92/28/EEC – National leg-islation prohibiting advertising of medicinal products by way of statements of third parties or prize draws – Use of generally positive results of a consumer survey and a monthly prize draw to win a pack of the product.

 

IPPT20071018, ECJ, KommAustria v ORF

Freedom to provide services – Television broadcasting activities – Directives 89/552/EEC and 97/36/EC – Definition of ‘teleshopping’ and ‘television advertising’ – Prize game.

 

IPPT20070419, ECJ, Bière Brut

Directives 84/450/EEC and 97/55/EC – Comparative advertising – Identifying a competitor or the goods or services offered by a competitor – Goods or services satisfying the same needs or with the same purpose – Reference to designations of origin.

 

2006

 

IPPT20060919, ECJ, Lidl v Colruyt

A feature satisfies the requirement of verifiability only if the advertiser indicates, in particular for the attention of the persons to whom the advertisement is addressed, where and how they may readily examine those details with a view to verifying, the details as to their accuracy.

 

IPPT20060223, ECJ, Siemens v VIPA

That Article 3a(1)(g) of Directive 84/450 must be interpreted as meaning that, in circumstances such as those in the main proceedings, by using in its catalogues the core element of a manufacturer’s distinguishing mark which is known in specialist circles, a competing supplier does not take unfair advantage of the reputation of that distinguishing mark.

 

2003

 

IPPT20030408, ECJ, Pippig Augenoptik

No stricter national provisions on protection against misleading advertising allowed. The advertiser is in principle free to state the brand name of rival products in comparative advertising.

 

2001

 

IPPT20011025, ECJ, Toshiba v Katun

Indication in a catalogue of product numbers for spare parts and consumable items may constitute comparative advertising. Only unfair advantage of the reputation attached to the marks when the public might associate the reputation of that manufacturer's products with the products of the competing supplier.

 

2000

 

IPPT20000113, ECJ, Estée Lauder

Community law does not preclude application of national legislation which prohibits the importation and marketing of a cosmetic product whose name incorporates the term 'lifting‘ in cases where the av-erage consumer, reasonably well informed and reasonably observant and circumspect, is misled by that name, believing it to imply that the product possesses characteristics which it does not have.

 

1999

 

IPPT19991028, ECJ, ARD v PRO Sieben

Gross principle to calculate 45 minute period for advertising interruptions. Member States authorised to prescribe the net principle for advertisements for broadcasting organization within their jurisdiction

 

1998

 

IPPT19980716, ECJ, Gut Springenheide

The Court took into account the presumed expectations of an average consumer who is reasonably wellinformed and reasonably observant and circumspect.

 

1994

 

IPPT19940202, ECJ, Clinique

Articles 30 and 36 of the Treaty and Article 6(2) of the Directive on cosmetic products must be interpreted as precluding a national measure which prohibits the importation and marketing of a product classified and presented as a cosmetic on the ground that the product bears the name "Clinique".

 

1993

 

IPPT19930518, ECJ, Yves Rocher
Price comparison: Prohibiting eye catching advertising of new price for imported goods, referring to a higher price in a previous catalogue,  precluded by free movement of goods

 

1992

 

IPPT19920116, ECJ, New Nissan
Advertising parallel imported cars as 'new' is not misleading

 

1990

 

IPPT19900307, ECJ, GB-INNO-BM
Prohibited application of Luxembourg advertising law  on legitimate Belgian advertisement.

 

1989

 

IPPT19891123, ECJ, Parfumeriefabrik 4711

Article 6(2) of the directive precludes national rules from requiring an indication of the quality and quantity of the substances whose presence is indicated on the packaging, in advertisements, or in the names of cosmetic products covered by the directive.