European Commission

 

Case detail

B a c k

Directive article Article 5 4. (a)
Article 6 1. (c)
Article 6 2. (b)
Article 7 4.
Annex I al1 4.
National ID 12J/2011
Country Portugal Decision date 10/08/2011
Common name Decision type Other
Court Segunda Secção do Júri de Ética Publicitária do ICAP (Lisboa) Plaintiff(s) ACAP – Associação Automóvel de Portugal
Court translation Second Section of ICAP’s Jury for Ethics in Advertising (Lisbon) Defendant(s) Midas Portugal Número Um, S.A.
Subject authorisation
Keywords advertisementblack listcomparative advertisingcompetitionendorsementmisleading advertisingunfair competition

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Headnote

The use of a promotional slogan by which the impression is created that the trader acts with the authorization of another trader, whereas in reality it does not, constitutes a misleading commercial practice.

Facts

The defendant, a company providing car servicing that is not a representative of any car brand (i.e. not an authorized repairer), used the slogan “New – Official Servicing” in its television and internet promotional campaigns.
The plaintiff, a car companies association, claimed that the use of that particular promotional slogan was in breach of the general prohibition on providing misleading information and that it constituted a misleading and unfair comparative advertising because it could lead consumers into thinking that the defendant is an authorized representative of one or more car brands when it is not. The plaintiff further argued that this advertising campaign created confusion with car servicing services provided by competitors approved, recognized or authorized by car brands.
The defendant on its turn stated that its advertising campaign was in line with Commission Regulation EC 461/2010, of 27 May 2010 (on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices in the motor vehicle sector) and that the notion "Official" (i) concerned the execution of the car servicing under the official car brands maintenance plan and (ii) had been used for over a year in other European countries and other companies in Portugal.
 

Legal issue

Does the use of a promotional slogan by which the impression is created that the trader acts with the authorization of another trader, whereas in reality it does not, constitute a misleading commercial practice?

Decision

ICAP first held that the use of the expression "Official" is likely to lead an average consumer into thinking that the advertised car servicing is carried out by the defendant in accordance with the standards established by the supplier of the car, under its certification, hence operating as a distinctive sign.
ICAP further ruled that the notion "Official" is a synonym of "Authorized" and therefore the slogan "Official Servicing" will be perceived as "Authorized Servicing" and this may cause the consumer to take a transactional decision that he or she would not have taken otherwise.
Finally, it was decided that due to the fact that the defendant’s campaign does not comply with the principles of giving complete and accurate information on the one hand and free and fair competition on the other hand, it breaches the prohibition on misleading commercial practices.
 

  URL Decision Decision full text
EN N/A
PT http://www.icap.pt/icapv2/icap_site/deliberacao_detalhe.php?AG4JPQ51=ADotela9Xr1&AHAJJg5i=&AGoJNwtela9Xr1tela9Xr1=ADcJYg45

Result

The court ruled in favor of the plaintiff and the defendant was ordered to cease its advertisement campaign.

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