Case detailB a c k
Article 5 2. (b)
Article 6 1. (b)
|Common name||9J/2012||Decision type||Other|
|Court||Primeira Secção do Júri de Ética Publicitária do ICAP (Lisboa)||Plaintiff(s)||Johnsons Wax de Portugal, Lda.|
|Court translation||First Section of ICAP’s Jury for Ethics in Advertising (Lisbon)||Defendant(s)||RECKITT BENCKISER, S.A.|
|Keywords||average consumer, false information, misleading advertising, product characteristics, unfair competition|
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Using side-by-side references in TV advertising to claim the superior qualities of a product in detriment of another without any verifiable basis, constitutes a misleading commercial practice.
The defendant, a company that produces and sells house cleaning products, aired a TV campaign in which it presented a new drain cleaner product. The TV ad included a computer generated sequence of defendant’s product cleaning the drains of a dishwasher side by side with another product labeled “Liquid drains cleaner from a leading brand”. The defendant argued that its product could clean and unclog the drains in just 5 minutes unlike the other product. The defendant further asked if the users were “tired of stress caused by drain clogging”, as well as stated that its product was “without any risks to pluming” and “without any ammoniac smell”.
The plaintiff claimed that presenting the defendant product side by side with a “Liquid drains cleaner from a leading brand” constitutes a form of comparative advertising, as per Article 16 of Decree-Law 330/90, of 23 October 1990 (the “Advertising Act”). Moreover, it claimed that a contrario the defendant stated that the other products would “cause stress by drain clogging”, “had risks to pluming” and “smelled like ammoniac”, which necessarily undermines the competition.
Additionally, the plaintiff argued that the defendants’ advertising was deceiving for the average consumer since it did not include any verifiable elements that could confirm the defendant’s claim. As such, it would infringe Article 10 of the Advertising Act, Article 5 and 7 of Decree Law 57/2008, of 29 October 2008 as well as the unfair competition rules laid down in Article 317 (b) and (e) of Decree-Law 36/2003, of 5 March 2003 (the “Industrial Property Code”). Finally, it was argued that the defendant’s actions were in breach of ICAP’s code of conduct.
Does the use of side-by-side references in television advertising to claim the qualities of a product in detriment of another without any verifiable basis, constitute a misleading commercial practice?
In a short reasoning, the court stated that the claims used in the television advertisements are likely to lead an average consumer to consider that the use of the product would lead to better results than those of a product of a competitor without providing any verifiable and objective evidence. Consequently, this leads to a misleading comparative advertising.
According to the court, the claims also qualified as an act of unfair competition as the defendant was making false claims about the nature, quality and advantages of its products by attributing a bad reputation to the defendant’s competitors.
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The court ruled in favor of the plaintiff and the defendant was ordered to end the campaign.
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