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Case detail



Directive article Article 6 1. (b)
National ID Hof van Beroep te Brussel 22 February 2011
Country Belgium Decision date 22/02/2011
Common name Hof van Beroep te Brussel 22 February 2011 Decision type Court decision in appeal
Court Hof van Beroep te Brussel Plaintiff(s) Procter & Gamble Distribution Company (Europe) BVBA
Court translation Brussels'' Court of Appeal Defendant(s) Reckitt Bensicker Belgium NV
Subject misleading advertising
Keywords advertisementmaterial informationmisleading advertisingmisleading statementsproduct characteristics

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Headnote

Stating in an advertisement that a "color remains [the same] color after 20 washings", whereas in reality it is established that after such a series of washings a change in color is perceptible to the naked human eye constitues a misleading commercial practice.

Facts

Plaintiff and defendant are both companies active in the production and sale of washings. The defendant had launched a number of promotional campaigns (in leaflets, on television, etc.).

In several television commercials, defendant showed two washing machines, with on the left side a white box with a big black cross on it and on the right side the product sold by the defendant (i.e. "Woolite"). After this, an image was shown with the title "after 20 washings", on which two black t-shirts are seen, of which one (with the mentioning "without Woolite") has obviously become grey, while the other (with the mentioning "with Woolite Mix Dark") has remained black.

After this, a voice over states: "More than your usual washing, Woolite Mix Dark washes and protects all your black clothing. The proof. After 20 washings black remains black.".

According to the plaintiff, these allegations were misleading. In first instance, the judge ruled against the plaintiff  due to the fact that the defendant had not stated in its commercial that "black remains  as black as in the beginning", but merely that "black remains black".
 

Legal issue

Does it constitute a misleading commercial practice to state in an advertisement that a "color remains [the same] color after 20 washings", whereas in reality it is established that after such a series of washings a change in color is perceptible to the naked human eye?

Decision

The appeal court, as did the first judge did, also first notices that the expression "black remains  as black as in the beginning" substantially defers from the allegation "black remains black". Crucial, according to the appeal court, is to establish whether after 20 washings, a difference in color is perceptible to the naked human eye.

Based on the tests performed by both parties, it was established (via so-called "Delta-E values") that the color of clothing, after having washed them 20 times with Woolite Mix Dark indeed had another Delta E-value, which would be perceptible to the naked human eye.

As a result, the appeal court decided, the allegation that "black remains black" was incorrect and could mislead consumers.
 

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Result

The court decided that the defendant's allegations were incorrect, hence misleading.

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