Article 6 1. (a)
|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.|
|Keywords||average consumer, comparative advertising, competition, misleading advertising|
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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.
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?
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.
|URL Decision||Decision full text|
The Jury ruled in favour of the plaintiff.
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