2.4.4. Confusing marketing
The Directive prevents traders from providing false information on, inter alia:
(a) the main characteristic of the product (including method and date of manufacture, geographical or commercial origin);
(b) the nature, attributes and rights of the trader or his agent, such as his identity and assets, his qualifications, status, approval, affiliation or connection and ownership of industrial, commercial property rights or his awards and distinctions.
Under the Directive, a commercial practice will also be regarded as misleading if it involves any marketing of a product, including comparative advertising, which creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor and, as a result, distorts the economic behaviour of the average consumer.
In this connection it should be noted that a commercial practice will be regarded as unfair in case of misleading presentation of factually correct information.
Article 6(2) and 6(2)(a) of the Directive prohibits "any marketing of a product, including comparative advertising, which creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor" if, in its factual context, taking into account all its features and circumstances, it causes or it is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.
A practice which raises issues of compatibility with the above provisions of Article 6 of the Directive is "copycat packaging".
"Copycat packaging" refers to the practice of designing the packaging of a product (or its "trade dress" or "get up") to give it the general "look and feel" of a competing well-known brand (typically the market leader). Copycat packaging is distinct from counterfeiting as normally it does not involve copying trade marks.
The risk posed by copycat packaging is consumer confusion, and, consequently, the distortion of their commercial behaviour.
Consumer deception takes a number of forms and each is explained in more detail below:
Deception over quality or nature
The similar packaging suggests to consumers that the quality or nature of the copycat product is comparable to the quality or nature of the brand in question or at least that it is more comparable that they might otherwise assume. As such, similar packaging gives the impression to consumers that the price alone is the only term of comparison between the products (rather than the combination of price and quality).
For example, a trader names or brands his new sunglasses so as to very closely resemble the name or brand of a competitor's sunglasses. If the similarity is such as to confuse the average consumer making him or her more likely to opt for the new sunglasses when, without such confusion, he or she otherwise would not have done so, this practice would breach the Directive.
The Directive also contains a list of unfair commercial practices to be considered unfair in all circumstances.
Annex I of the Directive (Commercial Practices which are prohibited in all circumstances)
The Directive contains some specific prohibitions concerning trade marks, brands and related features:
n. 3 Diplaying a trust mark, quality mark or equivalent without having obtained the necessary authorization.
n.4 Claiming that traders (including their commercial practices) or products have been approved, endorsed or authorised by a public or private body when they have not been or making such a claim without complying with the terms of the approval, endorsement or authorisation.
n. 13 Promoting a product similar to another product made by a particular manufacturer in such a manner as to deliberately mislead the consumer into believing that the product is made by that same manufacturer when it is not.