European Commission

 

Case detail



Directive article Article 6 1. (a)
 National ID 28J/2010
Country Portugal Decision date 20/12/2010
Common name Optimus Telecomunicações vs. Vodafone Portugal Decision type Other
Court Segunda Secção do Júri de Ética Publicitária do ICAP (Lisboa) (ICAP) Plaintiff(s) Optimus – Comunicações, S.A.
Court translation Second Section of ICAP’s Jury for Ethics in Advertising (Lisbon) (ICAP) Defendant(s) Vodafone Portugal – Comunicações Pessoais, S.A.
Subject misleading advertising
Keywords average consumer,  comparative advertising,  competition,  misleading advertising

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Headnote

The unfair commercial practices regime does not prohibit comparative advertisement practices that consist in the use of clearly exaggerated statements or statements that are not intended to be understood literally. These statements therefore  do not amount to denigrating or disparaging advertising. Further, an implicit reference to another company that can be identified by the average consumer does not amount to a misleading commercial practice. 

 
Conversely, an advertising campaign must respect the principles of fair competition and not place any competitor in a disadvantageous position.

Facts

 

Both the plaintiff and the defendant are large mobile telecommunications providers. The defendant launched an advertising campaign consisting of television and radio advertisements, as well as a number of advertisements placed on the website for Yorn (one of the defendant’s brands aimed at younger mobile users), Youtube and Facebook. The defendant’s advertisement campaign was a direct response to a previous advertising campaign used by the plaintiff to get the defendant’s subscribers to switch mobile providers and subscribe to the plaintiff’s services.
 
This campaign encouraged subscribers to the defendant’s services to invite “friends whose mobile numbers start with 93” (93 is the prefix for mobile numbers issued by the plaintiff) to cease using the plaintiff as their provider and instead subscribe to the defendant’s services. In exchange for encouraging friends to do so, subscribers to the defendant’s services would receive a percentage of any top-up charges made by their friends credited to their Yorn loyalty card.
 
The defendant’s advertising campaign made use of the following phrases and statements: "friends whose mobile numbers start with 93"; "in return for inducing clients"; "people who mess with ‘Yorns’ get..."; "get stuffed".

Legal issue

Does an advertising campaign that encourages the advertising mobile operator’s clients to invite friends from another specified mobile operator to switch services, using vulgar expressions such as “people who mess with ... get...” and “get stuffed”, constitute an unfair commercial practice, namely by misleading the consumer?

Decision

The Jury pointed out that the reference to brands, goods or services in the defendant’s advertising campaign constitutes comparative advertising, except where the reference was related to premiums or offers authorized by rights holders. The claim “friends whose mobile numbers start with 93” leads the average consumer to identify the services provided by the defendant (Optimus), and therefore the plaintiff’s (Vodafone/Yorn) competitors are identifiable and determined.

Is was held that the defendant’s irreverence and the use of vulgar expressions such as “people who mess with Yorns get...” and “get stuffed” do not amount to disrespect or cause the public to disregard the plaintiff. The unfair commercial practices regime does not prohibit advertising practices that consist of the use of clearly exaggerated statements or statements that are not destined to be literally understood. Also, the expressions “inducement” and “soliciting” are not insulting or deprecating and, therefore, there are no grounds for holding that the defendant’s advertisement campaign constitutes denigrating advertising.
 
The mobile operators are known and identified by the average consumer through the prefixes of the mobile numbers that they assign to their subscribers. Hence, the reference to the “mobile operator with numbers starting with 93” implicitly refers to the plaintiff and does not constitute a commercial practice that misleads the consumer as to the existence or the nature of a service and does not leads – or is likely to lead – the consumer to take a transactional decision that he would not have taken otherwise.
 
However, the defendant’s practice of comparative advertising does not respect the principles of fair competition as it places the plaintiff at a position of disadvantage in relation to other mobile operators on the market.

  URL Decision Decision full text
EN N/A
PT http://www.icap.pt/icapv2/icap_site/deliberacao_detalhe.php?AG4JPQ51=ADotela9Xr1&AHAJJg5i=&AGoJNwtela9Xr1tela9Xr1=ADcJYw4z&AGIJPQ5v=ADEJYw4xVmotela9Xr1 Click here

Result

The Jury ruled in favour of the plaintiff.

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