Table of Contents
Argentina
Australia
Page
5
8
Austria
15
Bolivia
21
Canada
26
Belgium
Brazil
18
23
Chile
30
Colombia
38
China
34
Commonwealth Caribbean
39
Denmark
46
Costa Rica
43
Dominican Republic
48
Ecuador
49
Finland
France
51
55
Page
Germany
59
Greece
65
Guatemala
Hungary
63
66
India
69
Ireland
71
Italy
76
Luxembourg
90
Israel
Korea
Malaysia
73
89
93
Mexico
97
New Zealand
98
Norway
103
Paraguay
104
Nicaragua
Poland
100
106
Page
Portugal
109
South Africa
118
Romania
112
Spain
121
Switzerland
128
United Kingdom
133
Sweden
Turkey
125
131
United States
136
Zimbabwe
150
Venezuela
List of Contributors
142
153
ARGENTINA
Dámaso A. Pardo
Paula Fernandez Pfizenmaier
Pérez Alati, Grondona, Benites, Arnsten & Martínez de Hoz (h) – IP
dap@pagbam.com.ar
pgfp@pagbam.com.ar
www.pagbam.com.ar
1. Case Report:
Topic:
Where:
When:
What Happened:
YPF S.A. on violation of Fair Trade Act (Law Number 22.802)
Violation of the Fair Trade Act
Court of Appeals for Criminal Commercial Matters of Buenos Aires.
June 21, 2006
The National Internal Trade Commission imposed a fine of US$ 5,000 to the
firm Y.P.F. S.A. (“YPF”) for infringing Section 9 of the Commercial Loyalty Act
22.802.
The fine was imposed since they offered the members of the “YPF Serviclub”
program (through catalogues), accommodation in the “Tower Inn San Rafael”,
being proved that, at that moment, the agreement between YPF and that hotel
had expired.
The YPF Serviclub is a gift program devoted to reward the clients of the “YPF”
petrol stations. The members of such program are given points in their
membership cards every time they make a purchase, and these points can be
exchanged for any of the gifts mentioned in the Gift Catalogue. The terms and
conditions of the program arise from this catalogue.
“YPF” appealed the disposition and asked for the reversal of the judgment.
The attorney-in-fact of the firm held that in point 5.11 of the Regulations, it is
established that all gifts are subject to availability and that “YPF” has the right
to provide an alternative gift of the same or better quality. And added that the
clients are notified about this possibility since the beginning, they are not
deceived at any time and no information is omitted as regards awards or
conditions.
Comment:
The court considered that the benefits of “YPF Serviclub” do not allow that
company to publish a service which they knew at that moment had already
expired in December 2003. It was not specified in the catalogue that the award
was limited to certain dates and so it confirmed the fine imposed by the
Commission but reduced the amount to the half of it (U$S 7,500) considering
that “YPF” did not have a record for breaking the Commercial Fair Act.
We believe that the criterion applied by the Court was correct since giving
wrong information is a suitable way of misleading the potential clients.
Therefore, we believe that the Court should not have reduced the fine since it
is necessary to enter judgment and impose fines as an example to
discourage other companies to make this kind of deceitful advertisements.
2. Legislation:
Topic:
Who:
When:
What Happened:
Disposition Number 11/2006
Security measures for the treatment and maintenance of personal data
contained in files, records, databanks or databases
NATIONAL DIRECTORATE FOR THE PROTECTION OF PERSONAL DATA
- Ministry of Justice and Human Rights
Disposition 11/2006 entered into force in November 2006 – This Disposition
complains Law Number 25.326 (Habeas Data) and Decree 1558/2001
Through this disposition, the National Directorate has approved the security
measures for the treatment and maintenance of personal data which shall be
complied with by those responsible for, and the users of non-state public and
private files, records, databases and databanks.
It also has established a “Personal Data Security Document” as an instrument
for specifying the security. This document set 3 security levels: BASIC, MID
and CRITICAL, according to the type of the information dealt with, including
guidelines also applicable to the non computerized files (manual recording).
Several security measures have been provided and established by this
Disposition for each of the above mentioned levels, by taking into account the
larger or lesser need for ensuring the confidentiality and integrity of the
information contained in the relevant databank, the type of data and the
adequate management of the risks they are exposed to, as well as the higher
or lower impact on individuals by the fact that the information recorded in the
files do not meet the due integrity and reliability conditions.
Comment:
3. Legislation:
Topic:
Who:
When:
Main Dispositions:
That different terms have been established for the implementation of the
security measures advocated, taking into account the level of security
involved, as well as the possibility of obtaining an extension after the
appropriate request has been filed.
The referred disposition is a good sign to maintain privacy and intimacy rights
in full effect. Lately, our Country has shown special interest on the treatment
of Habeas Data regulation and has issued statutory and complementary
norms of Law Number 25.326 – like the aforementioned - in order to avoid the
violation of constitutional guaranties and civil rights.
Law Number 26.104 – Complements Law Number 22.802
Obligation to individualize the photographed place.
National Parliament (law)
Act. Nº 26.104 entered into force in June 2006
Law Number 26.104 establishes the obligation to whoever advertises with
tourist purposes, through any means of communication, to be forced to put the
name of the item and to produce a copy or representation of locality, followed
by mention the name of province where it belongs.
By these new dispositions, whoever advertises in a graphic media, - and the
images exhibited with a tourist intention-, should fulfill the required information
using a typographic character of no less than 2 mm high. If it is an
advertisement in the street, it should cover 2% of the advertisement space.
Also, advertisement through television should contain the same information
with typographic characters of 2% or more of the screen.
The Law also establishes the obligation of providing such information in legible
typography and that it should appear on screen for no less than 3 seconds.
Comment:
The offenders shall be punished in accordance with the Fair Trade Act.
The purpose of this Law is to avoid that the audience of the advertisement
with tourist purposes could be deceived or misled in what is referred to the
origin of the tourist site whose images are used in the advertisements. We
believe that the obligation that sets the rule both to preserve the client and to
contribute with the Commercial Royalty among businessmen is appropriate.
4. Case Report:
Topic:
Where:
When:
What Happened:
Merisant Argentina S.R.L. on violation of Fair Trade Act (Law Number 22.802)
Violation of the Fair Trade Act
Court of Appeals for Criminal Commercial Matters of Buenos Aires
June 23, 2006
The administrative authority established a U$S 2,700 fine to the firm Merisant
Argentina S.R.L. for infringing Section 5 of Law 22.802.
The administrative authority attributed the implementation of a label that can
induce to error as regards quality, properties and characteristics of the product
“Endulzante liquido marca Sucaryl” (liquid sweetener) as it contained the
expression “Sin calorías”- “NO CALORIES” although it contained DEXTROSA
in its composition.
The punished firm acknowledged the use of the expression “sin calorías” (no
calories) in its products but it appealed the fine arguing that although the
sweetener contains dextrosa among its ingredients, the amount of this
substance per portion is not enough to consider the product as caloric.
Comment:
5. Case Report:
Topic:
Where:
When:
What Happened:
Comment:
The majority of the Chamber that voted understood that what the
administrative authority attributes is the use of a label that can lead to error as
regards the characteristics of the product and that this fact was admitted by
the manager of the firm Merisant. Consequently, it decided to confirm the
resolution appealed reducing the amount of such to the half, with a vote in
disagreement from Dr. Bonzón.
This Room in particular has held several times that the infringements to the
Commercial Fair Act (Ley de Lealtad Comercial) are of a negligent nature. In
accordance with this criterion it has taken a decision over the case of
reference: the implementation of a label that does not comply with legal
requirements for a product without calories against section 5 so the fine must
be imposed.
Tanus and Palazzi vs. Cosa, Carlos Alberto on Habeas Data Action
Spam Case
Civil and Commercial Federal Court
April, 2006
The federal judge issued the first decision in a spam case. Plaintiffs sued a
well known spammer under the new data protection law of Argentina. In their
complaint the two plaintiffs argued that section 27 of the 2000 Argentine Data
Protection Law gives them a right to opt out, which the spammer did not
comply with when they asked to be removed from the database (They
demanded their email to be deleted from the database). In November 2003,
the judge issued an injunction, declaring that during the process the defendant
should refrain from sending plaintiffs additional e-mails. The injunction also
forbids the transfer of the plaintiffs emails to third parties. His decision was
based on the data protection law (section 1, 2, 5, 11 and 27). Finally, the judge
issued the final decision, ordering defendants to stop any treatment of
personal data of the plaintiffs and delete their personal information. The
decision concludes that the sending of spam infringed the plaintiff privacy and
data protection rights.
Although, spamming has risen over the past years, Argentine legislation is not
specifically designed for fighting spam. There have been two anti-spam bills
in Congress without any visible action to take them to the floor for a vote.
AUSTRALIA
Peter Le Guay
Catherine Chant
Kieran Gamble
Katarina Smolcic
Thomson Playford
pleguay@thomsonplayford.com.au
cchant@thomsonplayford.com.au
kgamble@thomsonplayford.com.au
ksmolcic@thomsonplayford.com.au
www.thomsonplayford.com.au
1. Regulatory
action
Topic:
Who:
Where:
When:
What happened:
Misleading & Deceptive Conduct – Product Composition Claims
The Australian Competition & Consumer Commission (ACCC)
Australia
September 2006
Truth in advertising came under the ACCC’s scrutiny recently in the marketing of
fruit roll-ups (Roll-Ups). Uncle Tobys, a well known manufacturer of breakfast
cereals and snack products, made a number of representations about its RollUps, including by:
• stating that they were “made with 65% real fruit” (65% Claim); and
• showing images in an ad of an apple being flattened into a Roll-Up
(Apple Ad) and, by doing so, representing that Roll-Ups were made by
converting fruit into strips with minimal processing or without further
processing or other ingredients added (Minimal Processing Claim)
The ACCC expressed concerns that Uncle Tobys misrepresented the
composition of the Roll-Ups. Uncle Tobys did not admit to the
misrepresentations and, as Court action was avoided, there were no findings by
a Court in respect of Uncle Toby’s conduct. However, as a result of the ACCC’s
inquiries, Uncle Tobys, among other things:
• gave the ACCC Court enforceable undertakings, including to stop
making the 65% Claim, running the Apple Ad and making the Minimal
Processing Claim; and
• agreed to publish an article for the food industry through the Australian
Food & Grocery Council on the importance of accurate advertising.
Comment:
The article referred to Uncle Tobys’ “key learning from this experience” that “we
have to carefully consider how consumers might view both representations on
packaging and the overall impression created by all aspects of the product
marketing…”.
Product composition claims, like all other claims about a product, must be
substantiated. Claims about the percentage of a particular component in a
product must be 100% correct. Also, both words and images must be carefully
chosen for advertising. Images convey information and those which are capable
of misleading consumers may attract intervention from the ACCC.
2. Case report
Topic:
Who:
Where:
When:
What happened:
Misleading & Deceptive Conduct – Celebrity Endorsements
Federal Court of Australia
Australia
August 2006
The Australian Competition & Consumer Commission (ACCC) won an action for
misleading and deceptive conduct against a company, and its advertising agent,
promoting an impotence treatment. The ACCC enlisted the assistance of a
celebrity involved in the promotion to win its case.
Advanced Medical Institute Pty Ltd (AMI) promoted a nasal product for the
treatment of male impotence (AMI’s Product) under the heading “TV Star’s
amazing CONFESSION!”. AMI’s newspaper ad represented that the entertainer
Ian Turpie had confessed to an interviewer, in the presence of his wife, that he
had suffered from impotence and that AMI’s Product had cured him.
However, Mr. Turpie did not suffer from impotence, he had not used AMI’s
Product to treat impotence and the interview in the presence of his wife did not
take place. After being contacted by Mr. Turpie’s son, the ACCC took action
against Mr. Turpie for being knowingly concerned in misleading and deceptive
conduct. However, they gave him a partial indemnity in return for giving evidence
against AMI and its advertising agent Philip Somerset.
Comment:
3. Regulatory
action
Topic:
Who:
Where:
When:
What happened:
The Court found that the representations in the ad were misleading and
deceptive. It also found that AMI had breached section 52 of the Trade Practices
Act, 1974, which prohibits misleading and deceptive conduct, and Mr. Somerset,
who prepared and organised publication of the ad, was accessorily liable. The
fact that Mr. Turpie had written “ok” on, and signed, draft copies of the ad did not
assist AMI or Mr. Somerset. The Federal Court found that this authorised
publication, but it did not represent that the contents of the ad were true.
The case is yet another reminder of the cardinal rule that all advertising claims
must be capable of substantiation. Also, celebrity and other testimonials must be
supported with current signed releases from ad participants. The releases must
grant permission for publication of the testimonials and confirm their accuracy or
truth
Misleading and Deceptive Conduct - Trade Marks
ACCC v Just Squeezed Fruit Juices Pty Limited
Australia
27 March 2006
The ACCC alleged that Just Squeezed Fruit Juices Pty Limited (Just Squeezed)
had contravened the Trade Practices Act 1974 (Cth) through its use of its trade
mark “Just Squeezed”. By way of background, Just Squeezed manufactured and
distributed fruit drinks throughout the majority of States and Territories in
Australia under the brand name “Just Squeezed” which appeared prominently in
large letters alongside images of the particular fruit relevant to that drink.
Upon investigation by the ACCC, Just Squeezed advised the ACCC that the fruit
drinks contained between 25% and 75% fresh juice, depending upon seasonal
availability and the remainder of the drink was essentially made from
“reconstituted juice”.
The ACCC took the view that the brand name “Just Squeezed” when placed
alongside the words “fresh juices” and images of the particular fruit, falsely
represented to consumers that the drink was produced directly from the fruit
depicted on the label, was produced by squeezing the fruit depicted on the label
and that the ingredients in the drinks were made recently (i.e. within days prior to
purchase),. The ACCC was also of the view that the disclosure on the drink’s
ingredients label of the true ingredients (containing reconstituted juice) was not
sufficiently prominent to counteract the misrepresentation.
Comment:
4. Legislation
Topic:
Where:
When:
What happened:
In response to the ACCC’s concerns, Just Squeezed has agreed to implement
an ongoing Trade Practices Compliance program, publish corrective advertising
in respect of the matter and has provided court enforceable undertakings to,
among other things, cease use of the “Just Squeezed” trade mark and branding
in respect of their products. The Just Squeezed products are now marketed
under new branding of “Just Delicious”.
This matter reinforces the requirement that advertisers must take care and
consider the meaning that their trade marks will have for consumers and ensure
that their branding and trade marks do not create an overall impression that is
untrue or is misleading. The outcome for this trader was the abandonment of
their entire trade mark and the necessary creation of a new one.
Tobacco Advertising Prohibition Act 1992
Australia
1 October 2006
The Tobacco Advertising Prohibition Act 1992 (Cth) essentially bans all tobacco
advertising in Australia. However, until October 2006, the Federal Health
Minister was able to grant exemptions for some sporting events in this regard.
In 2000, the Tobacco Advertising Prohibition Act 1992 was amended to phase
out tobacco advertising at sporting events in Australia. The amendment gave a
deadline of October 2006 for previously exempted events to arrange alternative
sponsorship in order to comply.
There were 5 such events that had been exempted, being the Ladies Masters
Golf, the Indy 300, Rally Australia, the Motorcycle Grand Prix and the Formula
One Grand Prix.
Comment:
5. Case Report
Topic:
Who:
Where:
When:
What happened:
From October 2006 tobacco advertising (as it is defined in the legislation), unless
it is “incidental to” another matter or “accidental”, is prohibited outright.
As set out above, the exemption for some sporting events was only designed to
be a temporary exemption to allow such sports to gain alternative sponsorship
by October 2006.
Misleading and Deceptive Conduct – Use of Asterisks and Disclaimers
Astrazeneca Pty Limited v Glaxosmithkline Australia Pty Limited [2006] FCAFC
22
Australia – in Australian Doctor magazine
8 March 2006
In November 2004, Glaxosmithkline Australia Pty Limited published print
advertisements for its prescription only medicine for the control of asthma,
Seretide, in Australian Doctor magazine which is a magazine distributed to
general medical practitioners.
The advertisements referred to the medication either as “Seretide” or “Seretide
Total Control”. Wherever the words “Seretide Total Control” were used they were
linked via asterisk to a footnote which read as follows: “*The GOAL study
examined whether guideline defined asthma control could be achieved in 3,416
patients with uncontrolled asthma. 41% of patients achieved total control and
71% achieved well controlled asthma with Seretide for periods of 7 out of 8
weeks over the 12 month study”.
Astrazeneca alleged that the advertisements were misleading because the
overall impression was that by use of the words “Total Control” they implied that,
among other things, all or virtually all asthma sufferers will achieve 100% control
or total control of all asthma symptoms by using Seretide.
Astrazeneca did concede that the footnote correctly summarised the findings of
the study. The Federal Court found that, having regard to the intended audience
of the advertisements (general medical practitioners) along with the footnotes
which were connected by asterisk to the main headline and in an “easy to read
type”, the advertisements were not misleading and deceptive.
There had also been a second arm to the claim by Astrazeneca which was that
the footnote did not address the fact that the study did not include persons who
had significant concomitant diseases, smokers or asthma sufferers under the
age of 12 and therefore that the advertisement was misleading on the basis that
it implied that the study (and therefore Seretide) would achieve the same results
as set out in the footnote.
Comment:
6. Regulatory
action
Topic:
Who:
Where:
When:
What happened:
The Federal Court disagreed and found that simply not referring to such
exclusions from the study did not make the advertisement misleading or
deceptive as the advertisement stated only that the study was based upon
observations of “3,416 patients with uncontrolled asthma”.
This case highlights the fact that footnotes (referred to in the judgment as
“elucidators” and previously known as “disclaimers”) can be effective when used
appropriately, when prominently linked to the original statement and when given
sufficient prominence in the advertisement. Of importance in this case is the fact
that the product itself, being a prescription medicine is not the sort of product that
is purchased without due consideration and the intended audience of the
advertisement was general medical practitioners who were considered to be
sufficiently sophisticated and knowledgeable, in light of the “elucidator”, to not be
misled by the branding of the medicine. The outcome of this case is interesting
when compared with the “Just Squeezed” case set out earlier.
Misleading & Deceptive Conduct – Environmentally Friendly Claims
The Australian Competition & Consumer Commission (ACCC)
Australia
14 November 2006
Hagemeyer Brands Australia made false claims about it Dimplex air conditioning
products being “environmentally friendly”. As a result, Hagemeyer Brands
Australia has offered a court enforceable undertaking to the ACCC.
For a period of 9 months, Hagemeyer appliances advertised certain models of its
Dimplex air conditions on its website and in an advertising brochure claiming that
specific models in the Dimplex air conditioner range were “environmentally
friendly”.
Following complaints to the ACCC, investigations uncovered that the air
conditioners held R407C, an alleged potent greenhouse gas, which once
released into the atmosphere contributes to global warming. Though R407C may
be less harmful than other hydroflurocarbon refrigerants it is not “environmentally
friendly”. The ACCC raised concerns with Hagemeyer Brands Australia that the
advertisements on the website and in the brochure amounted to false and
misleading representations and breached consumer protection provisions of the
Trade Practices Act 1974.
Comment:
7. Regulatory
action
Topic:
Who:
Where:
When:
What happened:
Hagemeyer agreed to cease making the claim and to implement corrective
measures. These were:
• Write to all customers who received a Come Home to Cool brochure to
explain the effect of its conduct
• Publish corrective notices in the Appliance Retailer trade magazine; and
• Publish a corrective statement on the Hagemeyer and Dimplex websites.
The ACCC Chairman, Mr. Graeme Samuel said that “The ACCC considers
misleading environmental claims to be a serious issue, particularly as consumers
value environmental benefits when making their purchasing choices”.
Businesses making claims as to environmental benefits must be able to
substantiate those claims, particularly when the popularity of environmentally
friendly products is on the rise.
Misleading & Deceptive Conduct – Mobile Phone Ring Tones
The Australian Competition & Consumer Commission (ACCC)
Australia
October 2006
The ACCC has begun monitoring the marketing practices of ring tone traders in
a bid to ensure traders are not deceiving consumers about the nature of the ring
tones.
The issue came to light when the ACCC became aware of a number of traders
marketing ring tones as ‘true’ or ‘real’ tones when in fact the tones were cover
versions. In some advertisements for the ring tones, the well-known artists’ name
or image was displayed next to the song title without an effective disclaimer. The
ACCC was concerned that consumers were being misled into believing that the
tones were recordings of their favourite artists singing when in fact they were
recordings of un-known or sound-a-like performers.
Comment:
8. Self - regulatory
action
Topic:
Who:
Where:
When:
What happened:
The ACCC wrote to a number of operators locally and internationally and asked
that the words ‘real’ and ‘true’ tones be replaced with ‘cover tones’. The ACCC
also requested those operators to provide disclaimers in a “prominent,
meaningful and contemporaneous manner’” in order to avoid any potential for
misimpressions. The traders were given a 2 week deadline to respond to the
ACCC’s concerns and most have complied with the requests.
The ACCC will continue to monitor ring tone traders to ensure that consumers
are not being deceived as to the nature of their ring tones
AANA Code of Ethics (AANA Code)
Federal Chamber of Automotive Industries’ Advertising for Motor Vehicles
Voluntary Code of Practice (FCAI Code)
Advertising Standards Board
Australia
13 February 2007
Hyundai aired a TVC for its Santa Fe model which depicted a male toddler taking
his parent’s car keys, getting into and driving the Santa Fe to the tune of a
Country & Western style soundtrack. As he drives with the window down and his
arm resting on the open window frame, he waves to surprised looking passers
by. He then stops to pick up a female toddler hitchhiking and they go to the
beach. The female toddler watches as the male toddler surfs. At the end, a
voiceover announces “The next generation Hyundai Santa Fe is here” and the
scene ends with the male toddler putting his arm around the female toddler,
sitting on the car bonnet, watching the sun set.
The advertisement generated a number of complaints to the Advertising
Standards Board (ASB) ranging from those regarding the alleged sexualisation
of children, the alleged sexist theme of the boy picking up the girl and the girl
watching while the boy surfs through to alleged driving offences such as a
toddler being in a moving vehicle without a restraint.
The advertiser responded to the complaints by, among other things, pointing out
that the storyline was clearly based in fantasy and self-evident exaggeration and
that the effect of the toddler driving was created using computer generated
animation and post-production.
The ASB in its determination noted that the advertisement depicted a small child
driving a motor vehicle. The ASB agreed that the advertisement employed
fantasy but noted that the explanatory notes to the FCAI Code state that “fantasy
is not to be employed to contradict, circumvent or undermine the provisions of
the Code. The ASB determined that the legal requirements regarding the
minimum legal age of drivers was a matter that cannot be circumvented by
employing fantasy.
Section 2(c) of the FCAI prohibits advertisers from depicting driving practices
that would, if they were to occur on a road or road related area be in breach of
any road or driving law. The ASB determined that the advertisement breached
section 2(c) of the FCAI by depicting toddlers driving and travelling in a vehicle
whilst not in an approved child restraint.
The ASB then considered whether or not the advertisement had breached the
AANA Code. The AANA Code, among other things, prohibits advertisements
from discriminating on the basis of gender, requires advertisers to treat the issue
of sex, sexuality and nudity with sensitivity (given the relevant audience and
program time) and prohibits an advertiser from depicting material that is contrary
to prevailing community standards on health and safety.
The ASB determined that the advertisement did not breach the AANA Code in
respect of discrimination or vilification on the grounds of gender and did not
breach the code in respect of a portrayal of sex, sexuality or nudity. The ASB
further found that the advertisement did not contravene the AANA Code’s
provisions regarding material contrary to prevailing community standards by
depicting hitchhiking. The ASB did determine however that the depiction of a
toddler driving a car was contrary to prevailing community standards and in
breach of the AANA Code.
Comment:
9. Case report
Topic:
Who:
Where:
When:
What happened:
Subsequent to the determination the advertiser withdrew the advertisement from
further broadcast.
This determination helps to clarify the limits in respect of the utilisation of fantasy
in respect of the FCAI Code. However, it also shows that the outcome of ASB
determinations can be difficult to predict given that the depiction of a child
hitchhiking was not considered to be contrary to prevailing community standards
in respect of health and safety but a child driving a car was considered to be so,
even though both depictions occurred in the same context.
Misleading & Deceptive Conduct – Comparative Advertising
Johnson & Johnson Pacific Pty Limited (Johnson & Johnson) v Unilever
Australia Limited (Unilever)
Federal Court Australia
November 2006
In August 2005, Johnson & Johnson launched a new product called “Holiday
Skin” (Holiday Skin) which was a moisturiser combined with self-tanning lotion
and created a new market segment as previously the two were not available in a
single product. In March 2006, Unilever released a competing product called
“Dove Summer Glow” (Summer Glow) which was also a moisturiser combined
with self-tanning lotion in one. Each product was available in two variants
depending upon the user’s skin type (i.e. fair or dark). To advertise Summer
Glow, Unilever created a series of advertisements which showed a number of
women of varying ages and included the claim that “7 out of 10 Johnson’s
Holiday Skin users preferred new Dove Summer Glow”. The preference claim
was “elucidated” by the statement “In use test of 105 women conducted in
Australia by a leading research company in March 2006”. Viewers of the
Unilever advertisements were also encouraged to “think again” if they thought
that Holiday Skin gave the “best summer tan”.
Johnson & Johnson alleged that Unilever’s advertisements breached section 52
of the Trade Practices Act 1974 (Cth) (TPA). Section 52 of the TPA prohibits a
corporation from engaging in conduct that is misleading or deceptive or which is
likely to mislead or deceive.
The Federal Court found that the Unilever advertisements represented that (a)
the preference claim in the advertisements related to the tanning properties of
the product and not the product in general; (b) that the preference claim applied
to both variants of the products; and (c) that 7 out of 10 Holiday Skin users
preferred Summer Glow to Holiday Skin.
The Federal Court held that because (a) the research conducted did not
establish a preference in respect of tanning qualities of the products, only a
general product preference and (b) the research was only conducted in respect
of the “Normal to Fair” skin variant and not both variants; the advertisement was
misleading and deceptive.
Comment:
The Federal Court also held that the research did not include women under the
age of 25 years but that the advertisement depicted younger women and
therefore that there had been a misrepresentation that women under 25 years of
age had been included in the research. Accordingly, the general representation
(without age restriction) that Holiday Skin users preferred Summer Glow, was
found to be misleading and deceptive.
This case highlights the importance of how careful an advertiser needs to be in
comparative advertising both when formulating market research and when
extrapolating claims from market research to include in product advertising.
Advertisers should also take care to ensure that the overall impression of a
comparative advertisement reflects the individual comparative claims made.
AUSTRIA
Dr. Stefan Kofler
Greiter Pegger Kofler & Partner
stefan.kofler@lawfirm.at
www.greiter.lawfirm.at
1. Legislation:
Topic:
Where:
When:
What happened:
Tax Exemption for Sweepstakes
Law on tax exemption for sweepstakes
Austria
December 30, 2004
In Austria, prizes from games and sweepstakes were subject to taxation. Gift
tax had to be paid on the value of the prize. Both the winner and the organizer
of the game were liable for the payment of the gift tax.
With the law of December 30, 2004, BGBl I 2004/180, tax exemption for prizes
from games and sweepstakes was introduced. Gift tax no longer has to be
paid on such prizes. The tax exemption was retroactive to January 1, 2004.
The reason for this new law was that up to then, prizes won in games run by
Austrian National Broadcasting were tax-exempt. However, prizes in games
run by private television stations were subject to tax. The Constitutional Court
objected that this was a violation of the principle of equality. Legislation is now
such that all prizes from games and sweepstakes are exempt from taxation.
2. Legislation:
Topic:
Where:
When:
What happened:
Spamming
Anti-Spam Act
Austria
March 1, 2006
Effective March 1, 2006 a new anti-spam regulation was enacted by the
Austrian parliament. With this Anti-Spam Act Austria applies the opt-in
regulation for enterprises as well as for consumers. According to this act it is
not allowed to send electronic communications to consumers or enterprises
without having obtained the prior consent of the receiver, provided that
- electronic communication is sent for purposes of direct marketing or
- electronic communication is sent to more than 50 receivers
The prior consent of the receiver is not necessary in electronic communication
for customer service purposes. This requires
- that the sender had obtained the addressees contact information in
connection with the sale of products or services to the addressee
- the sender is using the contact information for direct marketing for
similar products and services and
- the addressee is given clear information that the addressee is entitled
to refuse further communication; this information must be included
with every transmission of electronic communication.
Comments:
Electronic communication in connection with customer service, however, is not
allowed if the addressee had already refused to receive electronic
communication by registering his name in a public negative list.
With this new act Austria applies the opt-in regulation for consumers and for
enterprises. Before this act was adopted, Austria had applied an opt-in
regulation for consumers and an opt-out regulation for enterprises.
3. Case Report:
Topic:
Where:
When:
What happened:
Keyword Advertising
Austrian Supreme Court
December 19, 2005
The plaintiff is holder of the protected trademark “Glucochondrin” for
pharmaceuticals. The plaintiff sued Google for alleged trademark infringement.
Google provided advertising space for a customer. In Google’s AdWord
programme the customer’s advertisement was connected with
“Glucochondrin” as keyword. When an internet user typed in the word
“Glucochondrin” on Google’s website, the advertisements of Google’s
customer appeared on Google’s site with a link to the customer’s website.
The respective customer was not entitled to use the trademark
“Glucochondrin”.
The plaintiff argued that Google, by selling the keyword “Glucochondrin”
assisted its customer in infringing the plaintiffs trademark and that Google
therefore is liable for trademark infringement under the Trademark Act. The
Supreme Court dismissed the case.
The judges ruled that Google would only be liable for trademark infringement if
Google had been aware that its customer was infringing the plaintiff’s
trademark. Generally, Google is not obliged to examine whether certain
keywords are protected trademarks and whether its customers are entitled to
use such trademarks or not.
Comments:
4. Case Report:
Topic:
Where:
When:
What happened:
However, in cases in which it is obvious that a customer is infringing a
trademark or in which Google continues to allow the use of a trademark
although it had been warned before by the trademark holder, Google could be
held liable for trademark infringement.
This is the first decision of the Austrian Supreme Court relating to Google’s
liability for trademark infringements committed on Google’s websites.
According to this decision, when selling keywords through an advertising
customer, Google has no duty to examine whether by the use of certain
keywords a trademark infringement may be committed by the customer.
However, in cases in which such trademark infringement is obvious or in
cases in which Google was warned by the trademark holder of an existing
trademark infringement on its website, Google can be held liable.
Pornographic Home Page
Link to pornographic home page
Supreme Court, Austria
November 18, 2003
The defendant was the owner of a home page. On this home page there was
a link to a website with pornographic content (www.pornotreffpunkt.at). The
proprietor of the website www.pornotreffpunkt.at had violated the e-commerce
laws.
The plaintiff filed a law suit and argued that the defendant was responsible for
the violations on the linked site due to the its link to that home page
(www.pornotreffpunkt.at). The defendant objected that a link to a home page
does not result in responsibility for that home page.
The Supreme Court decided that with its link to the home page
(www.pornotreffpunkt.at) the defendant had made the content of that home
page to a part of its own internet offer. For this reason the defendant was also
responsible for the violations of the law committed by the proprietor of the
home page www.pornotreffpunkt.at. Prerequisite for such responsibility is that
the link is designed in a way that the linked home page is integrated in content
to the other website.
BELGIUM
Jan Ravelingien
Marx, Van Ranst, Vermeersch & Partners
jan.ravelingien@mvvp.be
www.mvvp.be
1. Laws & Decrees
Topic:
Who:
When:
Where:
What Happened:
Comments:
2. Case Report
Topic:
Who:
When:
What Happened:
Advertising and Sponsoring on Radio and Television
Flemish Community – Parliament
February 2, 2007
State Gazette, February 23, 2007
The Decree of the Flemish Region of February 2, 2007 on changes of particular
rules regarding radio and television provides, in relevant part, that
- private television broadcasters, recognized by the Flemish Community
or duly registered with the Flemish Regulator on Media, are empowered
to air advertising, tele-shopping, sponsoring and messages of general
interest;
- the public television company of the Flemish Community can only bring
advertising with a view on self-promotion and has the right to air
messages of general interest;
- the public television company of the Flemish Community has the right to
air sponsoring. Sponsor mentioning is only allowed to contain the name
of the sponsor, the trade name, the logo, the product, the name of the
product, the service or the name of the service; mentioning is not to last
longer than 5 seconds per sponsor and 10 seconds in total;
- Within a period of 5 minutes prior to and following children’s programs of
the public television company of the Flemish Community, no sponsoring
mentioning is allowed;
- The public television company of the Flemish Community is not allowed
to bring television shopping;
The changes are important in practice. They also bring clarification on the
respective rights on advertising, tele-shopping and sponsoring of private and
public broadcasters in Flandern.
Limits of the Parody Exception to Copyright – Advertising for Magazines
Court of Appeals, Brussels
August 2006
The depiction of a popular children's character in the context of cocaine use
sparked a dispute involving the character's creator, the creator's publisher and
the magazine publisher which used the offending image as a cover illustration.
Miffy is an internationally renowned character in a series of children's books
originally created by Dutch author and illustrator Dick Bruna.
The April 2005 issue of the Belgian magazine Deng used a reproduction of
Miffy's head on its cover, on its website and on publicity material. Miffy - known
as Nijntje in Dutch, from the diminutive konijntje, meaning 'little rabbit' - was
pictured with a drop of blood on its lips, a white line under its chin and the words
"Ieder zijn lijntje" ('to each his own line'). The text, which rhymes with the name
Nijntje, was, in combination with the picture, to be understood as a reference to
drug use, with the white line under Miffy's chin representing a line of cocaine.
The image was intended to illustrate the magazine's article on drugs.
Bruna and his publisher claimed that both their copyright and their moral rights
had been infringed, particularly in respect of the use of Miffy's image in the
context of illegal substances, which they claimed was detrimental to Bruna's
honour and reputation. A 'cease-and-desist' order was obtained against the
magazine publisher; this decision was then appealed by the publisher.
The Court of Appeal identified four theoretical and cumulative conditions which
must be fulfilled in order for the parody exception to be invoked. A parody must:
• be an original work in itself;
• serve a critical purpose;
• be humorous; and
• use only the basic and strictly necessary elements of the original in order
to avoid confusion.
Comments:
3. Case Report
Topic:
Who:
When:
Where:
What Happened:
The court found that the magazine's cover illustration did not show sufficient
originality. It was a direct copy; Deng had reproduced more elements of the
original than had been necessary. The image used identical proportions, the
same characteristic thickness of lines and an identical palette of bright and
contrasting colours.
The case prompted the Court of Appeal to consider to what extent a parody of a
copyrighted work may infringe copyright and moral rights in the original. In the
case of such a copy, the public could not be certain whether the illustration was
the work of a parodist or the original artist. The illustration was not used to mock
the original work in a humorous manner; the parodist had merely attempted to
profit from the reputation of the original work in order to stimulate sales of the
magazine.
Violence and Torture in Radio Ad
Citybank, advertising for yearly basic interest rate
February 16, 2007
Self Regulation (JEP)
The radio ad runs as a scene where a man is forced to confessions. A consumer
complained with the Self Regulator.
The advertiser observed that the ad should bring transparency through an easy
offer instead of complex interest rates. Citybank brings the interest rate to life in
the ad under the form of a person who is forced into confessions to say that he is
not really 4%, but 2 + 1,5%. The advertiser emphasizes that this situation is
utterly absurd and humoristic.
Comments:
The JEP considers that the metaphor (personification of an interest rate) is not
clear with as consequence that the scene is not humoristic, but rather has a
degree of realism which can be perceived literally by an average consumer, to
wit as violence on a competitor to force him into confessions. The JEP also is of
the opinion that a tolerance towards violence transpires from the ad. The ad
lacks social responsibility. On the basis of the Code of the International Chamber
of Commerce, the Decree of the French Community, the Code on Ethics in
Advertising as well as recommendations for the JEP on the depiction of human
beings, the JEP recommends stopping airing the ad.
The case illustrates the almost zero tolerance towards the depiction of violence
in advertising
4. Case Report
Topic:
Who:
When:
Where:
What Happened:
Comments:
Disparaging Statements on Countries of Competing Automobile Producers in a
Print Ad
Korean Motor Company Hyundai
January 16, 2007
Self Regulation Authority (JEP)
The ad shows, under the heading “Free your brains. Delete, some examples”
four different images with short texts: image of typical French toilets with text
“vacation souvenirs”, image of the pop group Abba with text “Eurovision Song
Contest 1976”, image of five persons in traditional German outfit with a big glass
of beer and an image of Snow White with seven dwarfs. “And put the special
conditions of Hyundai in their place”. The complaint shows images of France,
Germany and Sweden as competing producing countries and damages the good
reputation of those countries, more particularly the school course language
German. The JEP declines the reproaches and considers that the message is
clearly figurative, the ad cannot be understood wrongly by the public at large as
a denigration of other countries or the German language. No infringement of self
regulation or legal provisions can be found.
This case shows how little is needed for an ad to give rise in Belgium to
complaints by consumers with the Self Regulation Authority.
BOLIVIA
Marcos Mercado
Alexandra Blanco
Guevara & Gutiérrez
mmercado@gg-lex.com
ablanco@gg-lex.com
www.gg-lex.com
1. Case:
Topic:
Where:
When:
What Happened:
Advertising and promotions in the telephone consumer market
Supreme Decree No. 28994
Executive Branch
January 01, 2007
The Supreme Decree No. 24132 modifies Article 59 of the Regulation of
Telecommunications and states that all providers must advertise there rates at
least 3 days before any change is made. Furthermore, it requires all the
providers to advertise the rates of all the services provided at least once a month
in a newspaper, and continuously through the Internet and/or a call center.
Furthermore, it allows the providers to offer promotions that are nondiscriminatory to the different types of consumers.
2. Case:
Topic:
Where:
When:
What Happened:
Unfair Advertising
Administrative Sanctions
Superintendence of Telecommunications
2006
In response to the complaints of telecommunication providers regarding
allegedly unfair advertising aired by other telecommunication providers, the
Superintendence of Telecommunications has sanctioned and fined the providers
who have aired unfair advertising and campaigns against the provisions set forth
in Administrative Resolution Nº 2005/1882 dated November 1, 2005 which states
that all promotional campaigns and advertising of telecommunications providers
must be honest and true and must not induce error in the consumer.
3. Case:
Topic:
Where:
What Happened:
RITZ HOTEL LIMITED vs. MERINCO S.A.
Nullity of the trademark
Bolivian Intellectual Property Office (SENAPI)
A local company (MERINCO) applied for the trademark “RITZ APART HOTEL
ALL SUITES” in the International Class No. 42.
THE RITZ HOTEL LIMITED worldwide title-holder of the “RITZ” and “RITZ
HOTEL LIMITED” trademarks did not apply nor register these trademarks in
Bolivia and thus presented an opposition to the registration arguing that RITZ is
a well known and famous trademark all over the world. The opposition was
denied by the Intellectual Property Office and the “RITZ APART HOTEL ALL
SUITES” trademark was granted.
Subsequently, THE RITZ HOTEL LIMITED initiated a procedure for the nullity of
the local trademark for the alleged infringement of registration prohibitions issued
for well known trademarks and bath faith registrations by the Paris Convention,
the Andean Community Decisions and the local regulation. Therefore, the
Bolivian Intellectual Property Office (SENAPI) issued a resolution declaring the
nullity of the trademark “RITZ APART HOTEL ALL SUITES” in strict compliance
with international conventions.
4. Case:
Topic:
Where:
When:
What Happened:
Supreme Decree No. 29004
Additional Requirements for the protection of pharmaceutical patents
Executive Branch
January 9, 2007
Supreme Decree No. 29004 states that the National Service of Intellectual
Property (SENAPI) may grant a pharmaceutical patent only with the prior
consent of the Ministry of Health that shall determine if the content and scope of
the patent does not interfere with the right to health and the access to medicine.
Please note that Bolivia is governed by Decision 486 of the Andean Community,
which prohibits any additional or different requirements than those established in
its articles.
5. Case:
Topic:
Where:
What Happened:
PACEÑA Beer
Well known trademark
Bolivian Intellectual Property Office (SENAPI)
Cervecería Boliviana Nacional (CBN), the leading Bolivian beer company and
owner of more than a dozen registered trademarks in the International Class No.
32 filed an opposition against the registration of the trademark “CAFÉ LA
PACEÑA” in the International Class No. 30.
CBN argued that it has diverse registered trademarks in Bolivia and requested
that the “PACEÑA” trademark be declared as a Well Known trademark.
The Bolivian Intellectual Property Office (SENAPI) denied the opposition arguing
that there is no risk of confusion with the “CAFÉ LA PACEÑA” trademark which
is registered in a different International Class; and declared the “PACEÑA”
trademark in International Class No. 32 as a Well Known trademark.
BRAZIL
Valdir Rocha
Veirano Advogados
valdir.rocha@veirano.com.br
www.veirano.com.br
1. Title
Topic:
Who:
Where:
When:
Decision:
What Happened:
Speedy English – Yes! I want to speak English now.
True Presentation
Brazilian Self-Regulation Council (due to consumers’ complaint) vs. Polishop
Brazilian Self-Regulation Advertising Council (CONAR)
June 2006
Suspended
A consumer from São Paulo considered Polishop’s ad published on the
Internet inappropriate. The ad promises that the consumer could learn the
English language in thirty days and that it could increase his wages with
knowledge of the language.
The advertiser said that the advertising was reformulated to a better exposition
of the product, i.e., making it easier to learn the English language.
With a majority of votes, the Ethic Council decided to ban the ad, based on
the fact that the message was inadequate because it presented exaggerated
promises. Such characteristic represents an infraction to the Self-Regulation
Advertising Code, which determines that education institutions cannot
guarantee success or promotion in the career of the pupil, unless they are
proven facts.
2. Title
Topic:
Who:
Where:
When:
Decision:
What Happened:
There are some companies that started to announce fees from 1 cent.
Image Defamation
Telefônica vs. Embratel and DM9DDB
Brazilian Self-Regulation Advertising Council (CONAR)
June 2006
Alteration
Telefônica announced a long distance call offer for cities up to one hundred
kilometers of distance charging only one cent per minute.
Some days later, according to Telefônica’s denunciation, Embratel, a long
distance company, broadcasted a TV commercial with a highly offensive
language, saying that Telefônica’s ad was a lie, that there is no such fee and
that no one would be benefited by it.
An injunction was granted suspending the advertising. Embratel defended that
they never intended to calumniate or to offend Telefônica and said that the
interpretation given to the ad was wrong, that they only wanted to question the
probability of the payment of a 1 cent fee on long distance calls, because
there are taxes due on the long distance fee. Furthermore, they defended that
Telefônica’s name was not even cited on the ad.
The reporter understood that the ads place Telefônica in total discredit with
irony, causing more damages to the company than if the ad seriously attested
that the commercial was a lie. The recommendation for the alteration of the ad
was accepted by majority of votes.
3. Title
Topic:
Who:
Where:
When:
Decision:
What Happened:
Copyright “Paracetamol”
Similarity on Ads
Janssen-Cilag X Medley
Brazilian Self-Regulation Advertising Council (CONAR)
July 2006
Alteration
The Ethics Council decided, by majority vote, for the alteration of the TV
commercials of drugs containing active ingredient PARACETAMOL made by
Medley and EMS, questioned by Janssen-Cilag for the references to its
product Tylenol.
Both advertisers discarded the intention of parasitic use of Janssen-Cilag’s
product in their campaigns saying that the principle of the generic drugs
divulgation is important because of the social benefits that they provide and
that would justify and authorize the citation of the reference drug and its
manufacturer.
As for the Medley’s commercial, the decision was reversed in first instance,
which decided for the abandonment of the case.
The reporter considered that the name of Tylenol must be used just as
reference, in an informative way, not exaggerated, and presented, always,
with a smaller letter than used in the commercial’s main message.
The considerations were the same for the EMS’ commercial adding that the
packaging’s photography and what it shows should be deleted.
4. Title
Topic:
Who:
Where:
When:
Decision:
What Happened:
True presentation – “UOL – The biggest internet company”
Inaccurate information
Terra X Uol
Brazilian Self-Regulation Advertising Council (CONAR)
July 2006
Alteration
Terra questions UOL’ s electronic media advertisement in which it declares
being the biggest internet company without presenting supporting data.
The accuser argued that expression “biggest company” is due to the one
company that has the highest revenue, and that is not UOL’s case.
For the defense, there is no rule that specifies which judgment defines the
largest company in a sector. Declared that UOL has superior audience and
largest content than the competitor and, therefore, the affirmation is justified.
In his arguments, the reporter considered that the use of laudatory
expressions must be attached to explanations and the source of the
information. It was recommended that the advertisement be altered. The
Ethics Council accepted the recommendation by vote majority
5. Title
Topic:
Who:
Where:
When:
Decision:
What Happened:
Respect – “Freedom – Personal Lubricant”
Disrespectful Image
CONAR X DKT and Emige
Brazilian Self-Regulation Advertising Council (CONAR)
July 2006
Suspension
A consumer from São Paulo complained against DKT lubricant‘s outdoor with
a picture of two men almost kissing. According to the complaint, the ad would
be inadequate for its sensuality and eroticism, improper themes for publication
in outdoors exposed to a large public, including children.
Even before CONAR accepted the complaint, the outdoors were taken off the
exhibition spots. An injunction was granted, followed by a defense request for
reconsideration, supporting itself in protests of people who were against the
removal of the outdoors. The injunction was sustained by the reporter
Counselor.
In its defense, the advertiser and agency declared that the campaign’s
intention was to communicate to the homosexual audience, and it did it in a
legitimate way. Defendants also argued that the picture showed an “almost
kiss”, which should not cause indignation, as the photography was not vulgar.
In his opinion, the reporter explained that the sexual option that was shown in
the advertisement was not the reason of the applied restriction and that the
work would be just as bold as if it had shown an “almost kiss” between a man
and a woman. Not for the picture, but for the association of a product called
“personal lubricant”. To illustrate his consideration, the reporter raised a
hypothesis where a child who saw the poster asked a parent what was a
personal lubricant. It was recommended that the ad be permanently
suspended, due to the media used. His vote was accepted unanimously by
the Ethic Council members.
CANADA
Wendy Reed
Geneviève Marcotte
Heenan Blaikie
wreed@heenan.ca
gmarcotte@heenan.ca
www.heenanblaikie.com
1. Title:
Topic:
Where:
When:
What Happened:
Industry-wide Class Actions no longer authorized in Québec
Litigation – Class Actions
Canada (Québec)
Québec Court of Appeal decision rendered on October 18, 2006
In Bouchard vs Agropur Coopérative et al, C.A. 200-09-005067-050, the Court
of Appeal finally tackled the issue of multiple Defendants being sued in class
actions alleging contractual liability.
The context was that of a consumer seeking permission to sue twelve (12)
dairy companies and the Attorney General of Québec, alleging that the milk
processed by these dairies contained at times less fat than the amount
advertised on the milk containers, contrary to regulatory standards. The fact
that this consumer had only purchased milk from one of the Respondents and
was nonetheless suing all twelve (12) dairy companies led to a debate on his
standing to sue the other eleven (11).
Comments:
2. Title:
Topic:
Where:
When:
What Happened:
Both the Superior Court and the Québec Court of Appeal, in addition to
denying the Motion for want of a serious appearance of right, further held that
the Petitioner must have sufficient legal interest to act on behalf of purchasers
of dairy products and must show a cause of action against each of the
Respondents being sued. The Court of Appeal expressed the view that the
class action regime was one of private law and that the concept of standing
must be considered in this context and not that of public law. Hence, a person
who had lost nothing could not be considered to have the required standing.
This decision follows the trend established in Ontario and in the United States,
and serves to dispel the uncertainty created by recent Quebec cases with
respect to the necessity of a legal relationship between the Petitioner and
each of the entities being sued on the basis of contractual liability. It may
serve to slow down the massive flow of class actions which have penetrated
the Québec jurisdiction in the last years, particularly with respect to major
consumer products including automobiles, insurance, securities and
pharmaceutical products.
Internet Sales Agreements: New Minimum Disclosure and Cancellation
Rights
Amendments to Quebec’s Consumer Protection Act
Canada (Québec)
December 2006
The Quebec government introduced and adopted their long-awaited
amendments to the Consumer Protection Act. Under the former provisions,
any merchant who concluded a “remote parties” contract (where the merchant
and the consumer were not face to face at the moment of offer) needed to
provide a bond to the Consumer Protection Office in order to carry on such
business. While the first bond was fixed, the bond varied in the following
years, based on the dollar amount of sales contracted in Quebec during the
previous year.
The amendments provide a new definition for “distant contracts”. They also
set out the merchant’s pre-contractual disclosure requirements and its
obligation to provide the consumer with a final copy of the contract. On the
consumer side, the consumer is granted new cancellation rights within specific
delays, where the merchant has failed to meet its obligations.
The modifications also provide for a chargeback mechanism (directly from the
merchant or, if the merchant fails to refund, directly from the credit card
issuer), if the consumer cancels the contract.
Comments:
The modifications also state that in a consumer contract, a provision which
requires the consumer to arbitrate a dispute of which removes a consumer’s
right to class action is void.
With these long-awaited modifications, the Quebec government has
“modernised” its consumer protection legislation and harmonised it with the
national initiative.
Although the law was adopted, it will come in force on a day to be fixed by the
government, but no later than December 15, 2007. Regulations will further
provide guidance as to the application of the law and will likely coincide with
the coming into force of the law.
This law is binding on all merchants selling to residents of Quebec, regardless
of any stipulation to the contrary.
3. Title:
Topic:
Where:
When:
What is
happening:
Two Provincial Jurisdictions Move to Regulate Gift Cards
Gift Cards and other stored value/pre-paid cards
Canada (Ontario – Manitoba)
Fall 2007
Two provincial jurisdictions have recently taken steps to start regulating gift
cards. Both Ontario and Manitoba passed amendments to their consumer
protection legislation in December 2006.
Ontario’s amendments to the Consumer Protection Act, 2002 allow for
regulations to be made with respect to the following:
• imposing restrictions, including prohibiting expiry dates, on future
performance agreements (including gift card agreements);
• governing the fees, other than the payment under a future
performance agreement, including a gift card agreement, for
supplying goods or services under the agreement, that the supplier
under the agreement may charge or is prohibited from charging to the
consumer;
• allowing the consumer under a future performance agreement,
including a gift card agreement, to cancel the agreement if the
supplier does not disclose the matters with respect to the agreement
that the regulations specify and governing the cancellation of the
agreement; and
• providing that any provision of the Act or the regulations applies to
future performance agreements, including gift card agreements, with
the modifications specified in the regulations.
Manitoba’s amendments prohibit the issuance or sale of a “prepaid purchase
card” that has an expiry date, except as provided for in the (yet to be
released) regulations. The amendments also require:
•
•
Comments:
that issuers and sellers of prepaid purchase cards provide certain
disclosures of information that will be specified in the regulations; and
that the card remain valid until fully redeemed.
The Government is currently consulting with the public on the development
and implementation of the regulations.
Ontario: We anticipate that the amendments to the Regulations (yet to be
released), will prohibit expiry dates on gift cards, as well as any fees which
might otherwise deplete their value. We also anticipate that certain
disclosures will be required to be made to the consumer, likely visible at or
before the time of purchase. We understand that the Ontario government
hopes to file the regulations in early May, with an anticipated in-force date for
these provisions of October 1, 2007.
Manitoba: A coming-into-force date for the Manitoba amendments has not
yet been set.
4. Title:
Topic:
Where:
When:
What is
happening:
Ontario Introduces Ban on Advertising Illegal Gaming
Advertising Gaming
Canada (Ontario)
Summer 2007
Amendments to Ontario’s Consumer Protection Act, 2002 (“CPA”) will create
a civil offence for advertising illegal gaming. The Ministry of Government
Services anticipates that the provisions will come into force sometime in late
Summer 2007. The following summarizes the key concepts:
• “Pay-to-play” sites: The definition of “internet gaming site” is
restricted to those sites that accept or offer to accept wagers or bets.
Therefore, advertising sites that offer free games, or learn to play
sites where no money changes hands, are not addressed.
•
Games of skill not captured: Only games of chance, or games of
mixed chance and skill, are encompassed by the definition of an
internet gaming site. Advertising a site that offers only games of pure
skill, then, would not be contrary to the CPA. The issue remains,
however, as to what would satisfy a test of “pure skill”. Sites offering
casino or card games are specifically mentioned as examples of
illegal gaming sites where wagers are involved. Note, too, that an
“internet gaming site” includes sites that accept bets on any
contingency or event, seemingly of any nature, regardless of where
the activity takes place. So, while one could advertise a site offering a
pure skill contest, one could not advertise a site allowing wagering on
the outcome of a skill contest, or any other event.
•
Scope outside of Ontario: The provision is limited to advertising that
“originates in Ontario, or is primarily intended for Ontario residents”.
So, if advertising exposure to the Ontario market is incidental, the
advertiser may not be captured by the prohibition. Note, however,
that it is the scope of the advertising, and not the location of the
gaming activity, that is at issue.
•
ISP and Search Engine Exemptions: The definition of “advertise”
under the amended CPA is very broad, and contemplates virtually any
form of promotion activity in any format, from print ads, to links, to
sponsorship agreements. However, internet service providers are
carved out from the provision restricting any person from arranging or
otherwise facilitating prohibited advertising on behalf of another
person. Also, links that appear through the search results of an
internet search engine are excluded from the definition of
Comments:
“advertising”.
Gaming, betting, and lottery activities are regulated under Canada’s Criminal
Code. It has been the subject of discussion and debate whether the act of
advertising illegal gaming could, in itself, be illegal as aiding or abetting the
offence. Without deciding that issue, new amendments make advertising
online gaming, if the gaming is conducted illegally under the Criminal Code,
contrary to the CPA on a civil basis.
Under the criminal law, the offence must be proven beyond a reasonable
doubt, but in a civil context, the offence need only be proven on a balance of
probabilities. Given these two different standards of proof, it has yet to be
seen how the interplay of this civil penalty, based on a precondition of criminal
activity of another party, will come to be enforced. The Ministry anticipates
that these provisions will come into force sometime in late Summer 2007.
CHILE
Rafael Pastor
Guillermo Rivas Sureda
Albagli Zaliasnik & Cia.
rpastor@az.cl
grivas@az.cl
www.az.cl
1. Case Report
Topic:
Who:
Where:
When:
What Happened:
Advertisements based on surveys conducted by governmental agencies
The Council for Advertising Self-Regulation and Ethics (CONAR)
Santiago, Chile
December 2006
The SERNAC (Servicio Nacional del Consumidor) or National Consumer Service
(NCS), is a government agency in charge of enforcing and protecting consumer
law and consumer’s rights. One of the legal duties of the NCS is to provide
consumers with valuable information and to carry out educational campaigns. In
doing so, the NCS conducts during certain time periods, probably three or five
times a year, market surveys aimed at providing local consumers with valuable
information pertaining to prices, purchasing strategies, recommended shopping
locations, credit conditions, cheapest providers et. al.
Bicycles are a very popular item during the Christmas season. Consequently,
the NCS conducted its annual survey this year during November and December
to analyze the bicycle market. The survey was called “Inquiry into bicycle
prices”.
One of Chile’s largest retail companies, Comercializadora S.A., started an
advertising campaign based on the information and data provided by the
previously noted NCS survey. Comercializadora S.A. ran an ad campaign titled
“The cheapest bicycles are in Comercializadora. Surveyed by the NCS”, and
then a price chart showing that Comercializadora was the cheapest choice in
more than 28 models. Another ad stated that “Comercializadora, all year round,
the lowest prices. The cheapest bikes are in Comercializadora. Surveyed and
certified by NCS”.
Once this campaign was aired, the Council for Advertising Self-Regulation and
Ethics (CONAR) started an investigation ex-parte in order to analyze whether
ads were in compliance with Chilean Advertising Code.
Comercializadora defended itself by sustaining that the campaign did not
constitute an infringement of article 4º (Veracity, presentation and interpretation)
and article 6º (Technical arguments and verification) of the Chilean Ethical
Advertising Code since: (1) it does not purport any false claims which may lead
or induce consumers to wrong interpretations or choices, (2) technically, the ad
campaign provided information that is statiscally correct, and (3) private actors
may freely use information provided by governmental agencies and draw partial
conclusions from it as far as these inferences or conclusions are accurate and
do not mislead the public.
In the end, CONAR ruled in favor of Comercializadora. CONAR concludes that
the campaign is not in violation of the Chilean Ethical Advertising Code, except
for one ad used by Comercializadora in which the retailer claimed having “all
Comment:
2. Case Report
Topic:
Who:
Where:
When:
What Happened:
year round, the lowest prices”, because surveys are “market snapshots taken in
a certain moment, thus, they do not reflect extended periods of time”.
Despite the fact that CONAR investigated ex-parte Comercializadora’s
advertising campaign for alleged bad use of information provided by government
surveys, the ruling upheld Comercializadora’s use of the surveys in its ad
campaign, with the sole exception that private actors are not entitled to claim “all
year round” attributes as surveys are just a reflection of the market at a certain
point in time.
Deceptive advertising related to pharmaceutical products
BAYER S.A. vs. LABORATORIO MAVER LTDA.
Santiago, Chile
April, 2006
Bayer files a formal complaint against Maver Pharmaceutical’s advertising
campaign of its pharmaceutical product “Fluicor ASA 81”. The complaint states
that Maver’s campaign infringes upon articles 6º (Information delayed) and 25º
(Advertising related to pharmaceuticals) of the Chilean Ethical Advertising Code.
Basically, Maver’s Fluicor ASA 81 is aspirin (acetylsalicylic acid) in its standard
form, though with certain variations, and placed on the market through a prolific
advertising campaign focused on already well-known attributes. The ads contain
messages such as “Fluicor ASA 81, does not hurt your stomach”; “Fluicor ASA
81 protecting your arteries”; “Fluicor ASA 81, “Fluicor ASA 81, protecting your
circulatory system”; “Fluicor ASA 81, diabetes and cholesterol” .
In analyzing these claims, the CONAR scrutinized not only the message
conveyed to the public but also the scope of protection granted by the marketing
approval issued by Chilean sanitary authorities. The approval granted protection
as a pharmaceutical product able to prevent heart and vascular disease,
reducing cardiovascular accidents.
Taking into account the protection granted by the marketing approval issued by
local authorities, the CONAR concluded that there is no infringement with
respect to phrases such as “Fluicor ASA 81, does not hurt your stomach”.
However, Conar’s Board conclude that all other advertisements infringed upon
the Chilean Advertisement Ethical Code as the messages conveyed did exceed
the protection afforded by marketing approval. In particular, Conar declared that
phrases such as “Fluicor ASA 81 protecting your arteries”; “Fluicor ASA 81,
“Fluicor ASA 81, protecting your circulatory system”; “Fluicor ASA 81, diabetes
and cholesterol”, are far beyond the scope allowed, and thus, clearly infringe
upon Chilean advertising regulations.
The Board of CONAR also viewed as infringements, certain phrases used by
Maver pretending that Fluicor ASA 81 was somewhat endorsed by a not very
well known “Inter American Health Foundation”. During the proceedings the
respondent was not able to prove the status of such foundation. The Board
clearly states that the latter was a misleading message that was capable of
disrupting the public’s confidence and trust.
Comment:
Another controversial message used by Maver was “Fluicor ASA 81, First pick in
the United States and Canada”, which was also found to be an infringement
upon Chilean Ethical rules. The respondent was unable to prove that similar
products are in fact a “first pick” in the cited markets.
Advertising campaigns related to pharmaceutical products are not allowed to go
beyond the protection granted by marketing approval issued by medical
authorities and campaigns may not use expressions or terminology against
scientific standards or inducing consumers to erroneous conclusions.
3. Case Report
Topic:
Who:
Where:
When:
What Happened:
Comparative Advertising
The Council for Advertisement Self-Regulation and Ethics (CONAR)
Santiago, Chile
March, 2006
Unilever Chile HPC Limitada (Unilever) filed a complaint against Cleaner Chile
Limited (Cleaner) on grounds that this company’s ASTER (trademark) marketing
campaign could mislead consumers by using the claim “Total Dissolution” and
the phrase “total dissolution, even in cold water” and “…it dissolves absolutely in
cold water!” used on containers, as well as the phrase: “Aster arrived at last! The
detergent that thanks to its biodispersive qualities dissolves completely, even in
cold water, obtaining a deeper wash, without residue. New Aster. Total
Dissolution, even in cold water.”
The defendant responded arguing that their ASTER marketing campaign
complies with CONAR’s Code of Advertising Ethics, because it bears subjective
concepts that are in line with advertising ethical standards and objective
concepts which are validated by the novel technology incorporated into ASTER
products. This technology, in their opinion, objectively grants them great
dissolving capacity compared to that of their competition. This is confirmed in
technical reports drafted by independent laboratories that conclude that ASTER
products perform better than other products in the market, as well as by a
categorical support of consumers that has been measured and confirmed in
market studies.
CONAR rendered a decision in favor of Unilever, noting that in light of the
evidence submitted by Cleaner, this party did not prove the total dissolving
qualities of ASTER products claimed in their advertising campaign.
Comment:
4. Case Report
Topic:
Who:
Where:
When:
What Happened:
Cleaner submitted an appeal against CONAR’S ruling before the Ethical
Advertising Court of Appeals, which did not uphold the initial judgment, and thus
dismissed Unilever’s complaint based on the fact that according to this Higher
Court, Cleaner did file enough evidence to support the claims and phrases used
in their advertising campaign in regards to the great dissolving capacity of
ASTER products.
The Ethical Advertising Court of Appeals made a strong point establishing that
ASTER advertising campaign was in compliance with the Advertising Ethic’s
Code, due to the fact that Cleaner was capable of proving that their Aster
products are capable of producing the effects claimed in the phrases “total
dissolution” and “it dissolves absolutely”. Albeit, it is important to bear in mind
that this Higher Court did by no means establish a criterion in regards to the
binding nature for companies’ to prove objectively the claims set fourth in
comparative phrases such as “total dissolution” and “it dissolves absolutely”.
Compliance with Sanitary Regulation, Moral Standards and Respect Towards
People.
The Council for Advertisement Self-Regulation and Ethics (CONAR)
Santiago, Chile
Julio, 2007
Bayer S.A. (Bayer) filed a complaint against Laboratorios Maver Ltda. (Maver)
on grounds that this company’s NECTADAY (trademark) marketing campaign
did not comply with Chile’s Sanitary Regulation of Food Products (Supreme
Decree N`977), because it mislead consumers about the qualities and effects of
NECTADAY food products by omitting information on the labels of these
products. Maver did not include the word “Supplementary Food” and the
following inscriptions: “Use of these food products are not recommendable for
people under 8 years old, women who are pregnant or are wet nurses, unless
they receive an indication from a competent physician and these food products
do not replace a balanced diet.”, and “Food product for sportsmen that contains
Korean ginseng. Not recommendable for people under 15 years old, women
who are pregnant or breast feeding.”
The defendant responded arguing that their ASTER marketing campaign
complies with Chile’s Sanitary Regulation of Food Products (Supreme Decree
N`977), and in order to prove the latter they submitted a document named
“Technical records related to Bayer’s claim presented before CONAR in regards
to Nectaday”.
CONAR rendered a decision in favor of Bayer, noting that Mayer’s Nectaday
television advertisements (television commercial and product placement) were
not in line with Chile’s Sanitary Regulation of Food Products (Supreme Decree
N`977), because information was withheld from the labels of Nectaday food
products, while they were broadcasted on television, misleading consumer about
the effects and qualities of these products.
Comment:
Maver submitted an appeal against CONAR’S ruling before the Ethical
Advertising Court of Appeals, which upheld the initial judgment, specifying that
the initial judgment was not based on erroneous facts and that they were
absolutely convinced that Maver did not advertise their Nectaday food products
using labels with all the information deemed mandatory by Chile’s Sanitary
Regulation of Food Products (Supreme Decree N`977).
Both CONAR and Ethical Advertising Court of Appeals made a rigorous
statement to point out that Maver’s television advertising campaign was not in
compliance with Chile’s Sanitary Regulation, because the labeling on the foods
products did not meet the Ethical Standards set forth by CONAR’S Code of
Ethics. This judgment highlights the relevance of granting complete information
to consumers for food products.
CHINA
Richard Wageman
Lehman Lee & Xu
rwageman@lehmanlaw.com
www.lehmanlaw.com
1. Legislation
Topic:
When:
Where:
What Happened:
2. Legislation
Topic:
When:
Where:
What happened:
3. Legislation
Topic:
When:
Where:
What Happened:
China formulates Preliminary Rules for Review of Pharmaceuticals, Medical
Devices and Health Food Advertisements
September 2006
People’s Republic of China
The rules seek to standardize the examination and approval process with
respect to pharmaceuticals, medical devices and health food ads and their
filing process. The rules take effect 30 September 2006 and state that:
• Where the ads approved by the Food and Drug Administration violate
relevant advertisement review regulations, where reexamination of the
ads is deemed necessary by relevant ads supervisor, where ads
published at another place and the corresponding FDA department
has raised opposition pending the state FDA ruling, the State FDA
shall order the departments involved to redress the situation.
• The State FDA shall set up a database of ads re-examiners
comprised of the ads reviewers from the Department of
Pharmaceutical Market of the state FDA, the Advertisement Review
Supervisory Office of the FDA and the FDA department of each
province (autonomous region or municipality).
• The Advertisement Review Supervisory Office of the FDA, in the
event of any remarkably different opinions, may enlist the help of
relevant technical experts, ads supervisors or relevant consumers for
their opinions.
Medical ads management
January 2007
People’s Republic of China
Management Methods of Medical Ads was enacted for the purpose of
strengthening the administration of medical ads and ensuring the public
health. The management methods take effect January 1, 2007 and require
that:
• Review Certificate is required for medical ads, in its absence, medical
ads may not be published.
• Non-medical institutions must not publish medical ads and medical
institutions must not publish medical ads in the name of departments
or sections.
• The contents of the medical ads are not allowed to contain
information such as name of the disease, guarantee or implied
guarantee of a complete recovery, effectiveness, superstition, etc.
Drug ads should be authentic, legal and scientific
May 2007
People’s Republic of China
State Administration of Industry and Commerce issued the Review and
Publication Standards for Drug Ads. The standards take effect May 1, 2007
and require that:
• Publications of some specific drugs are forbidden. For instance,
narcotics, psychotropic substances, medicinal toxic, radioactive
pharmaceuticals, etc.
• Exaggerated ads, intentional concealment of relevant factors of
statement of any theory or opinion that is not indicated in the drug
instructions is forbidden.
• Drug approval number, adopted name of the drug, instructions, and
ad approval number should be indicated in the drug ads.
• The functions and therapeutic efficacy of the drug in the ad should be
scientific and accurate. It should not include information that is
indicative of a recovery rate, give comparison between the drug
involved and another, indication that the drug is integral to daily life,
etc.
4. Legislation
Topic:
When:
Where:
What Happened:
5. Case Report
Topic:
Where:
When:
What Happened:
China issues new drug ads management methods to place drug adverts under
strict control
May 2007
People’s Republic of China
In order to strengthen drug ads management and ensure authenticity and
legality of drug ads, the Review Methods of Drug Advertisement. The review
methods take effect May 1, 2007 and require that:
• Drug ads reviewers may not accept drug ads in the circumstance that:
- there is false representation in an ad with unauthorized
alteration of the approved contents.
- upon discovery of any false application documents and within 1
year thereof, the drug ads reviewer shall refuse to review any
application the documents filed by the relevant enterprise.
- upon discovery of any grant of ads approval numbers with false
application documents, the drug ads reviewer shall cancel the
relevant approval number and within 3 years thereof shall not
consider review of any application documents filed by the
relevant enterprise.
• Where any discretionary extension of the scope of the drug’s
functions, exaggeration of the drug’s therapeutic efficacy or any
fraudulent or misleading representation against the law are
discovered, relevant administrative compulsory measures will be
taken to suspend further sales of the drug and order the ads publisher
to make a correction in an announcement made through local media
vehicles.
Suit for RMB 1 Cent Compensation
Chaoyang District People’s Court, Beijing, China
Dec 24, 2006
On Dec 24, 2006, Ms. Liu, who once sued the producer and seller of Bovle
honeycomb underwear, made a claim against Heilongjiang Star TV,
Shangdong Star TV, Guangdong Star TV, and Tourist Star TV for
compensation of one cent RMB on the grounds of infringement of her rights to
life and health.
From Nov 23, 2006 to Nov 25, 2006, the four local media have been
continually broadcasting advertisements of Bovle honeycomb underwear for
its excellent thermal functions. However, after purchasing the product, Ms. Liu
found that it did not perform as advertised and even caught a cold while
Comment:
6. Industry Report
Topic:
Where:
When:
What Happened:
Comment:
7. Industry Report
Topic:
Where:
When:
What Happened:
Comment:
8. Case Report
Topic:
Where:
When:
What Happened:
wearing the product. Ms. Liu insisted that the four TV stations must make an
apology to consumers and guarantee that no similar cheating would occur in
the future, regardless of the current regulations.
The time and cost spent by Ms. Liu in claiming the compensation was far more
than one cent RMB. In fact, it appears that Ms. Liu’s claim for compensation is
more of a public service act rather than a request for individual gain.
8 False Advertisements Exposed to Protect Consumers from Suffering
Shanghai, China
Jan 26, 2007
Shanghai Administration of Industry and Commercial exposed 8 false
advertisements in order to protect consumers from costly damages.
Shanghai has been strengthening administration on advertisements in 2006.
As the result, the rate of illegal advertisements has dropped from 9.83% to
3.1% for medical treatment, from 5.46% to 2.87% for medicine, from 19.92%
to 6.62% for medical equipment, and 5.35% to 3.74% for nutritional foods in
2006.
There has been significant improvement on the supervision of advertisements
in Shanghai demonstrating that prevention is more effective than punishment.
7 Illegal Advertisements Exposed
Beijing, China
Mar 1, 2007
On Mar 1, 2007, the State Administration of Industry and Commercial and the
State Food and Drug Supervisory Administration jointly exposed 7 illegal
advertisements for medicine and medical equipment.
The 7 illegal advertisements, including “Yan Bao Mu” eye medical equipment,
violated the Advertising law of PRC and the Pharmaceutical Administration
Law of PRC, which exaggerated the main medical function beyond their
approval and mislead consumers.
The authoritative departments must strengthen administration of
advertisement approval and impose administrative penalties on violators if
necessary.
Secret Tibetan Lubricant
Beijing, China
Mar 15, 2007
On March 15th 2007, CCTV ran an exposé on the weight-reduction diet tea
known as "Secret Tibetan Lubricant". Consumers were complaining that the
product did not perform as advertised. The program also pointed out that the
spokesperson for "Secret Tibetan Lubricant" was Guo Degang, who is a
famous talk show host in China.
Advertisements for food and healthcare products, according to advertising
regulations, must be approved by the Provincial Food and Drug Supervisory
Administration. In this case, the manufacturer submitted certain
advertisements for examination and received approval. However, the actual
advertisements that appeared were new versions that were completely
inconsistent with those that were approved.
There is also the question of responsibility and liability of celebrity
Comment:
spokespersons.
In many western countries, and Japan and Taiwan, celebrity endorsements
are treated as "testimonial advertisements" and "public guarantees". In the
event of false advertising, consumers may sue the celebrities for damages. In
China, although many celebrities are endorsing products, there is no
corresponding law. In the recently concluded National People’s Congress
(“Congress”), a member of the Political Consultative Committee recommended
that celebrity spokespersons who engage in false advertising should be held
liable.
COLOMBIA
Ricardo Duarte Duarte
Duarte Garcia & Associados
rduarte@col-law.com
www.col-law.com
1. Case:
Topic:
Where:
When:
What Happened:
Relevance of TV Advertising on certain time slots
Decision No. 004 (“Acuerdo”)
National Television Commission (CNTV) www.cntv.org.co
February 13, 2007
The National Television Commission (CNTV) issued the abovementioned
decision to oblige all public and private open television operators with national,
regional or local coverage, regional channels contractors and non-profit
organized communities providing community television services to decide on the
appropriate content of TV ads on certain time slots. Article 6 establishes that
advertising should be in conformity with the content and treatment with the
audience’s time slots in which they are aired. Commercial ads or promotion of
cinematographic productions or TV programs rated Restricted/Adult or with
material only suitable of adults may not be broadcasted in family and children
time slots.
2. Case:
Topic:
Where:
When:
What happened:
Misleading Advertising
Penalty – Resolution No. 3722 dated February 19th, 2007
Superintendence of Industry and Commerce (SIC)
February 19, 2007
The SIC, in charge of consumer protection, fined the biggest brewery of
Colombia Bavaria S.A. for misleading consumers in an advertising national
campaign about awarding a painting from Fernando Botero, famous for his
robust figures. The SIC ordered Bavaria to pay the maximum legal fine for not
disclosing to consumers on probabilities of winning the contest. Bavaria hid 50
winning bottle caps among all the bottles of its beer brand “Club Colombia”. The
50 winners were to compete in February to win the Botero painting worth close
to US $1 million. The fine was imposed although Bavaria made the proper
adjustments while the campaign was ongoing. The fine is the highest the
Superintendence can enforce for such infraction (Aprox. US$19,700).
COMMONWEALTH CARIBBEAN
George C.J. Moore
George C.J. Moore Law Offices
barrister@barristerlaw.com
www.caribbeantrademarks.com
1. Topic:
About the
Caribbean:
Caribbean Trademark Law Update
The Caribbean is home to 18 British Commonwealth countries and territories.
The countries are independent; the territories are UK dependencies, as
follows:
Countries: Antigua & Barbdua, Bahamas, Barbados, Belize, Dominica,
Grenada, Jamaica, St. Kitts & Nevis, St. Lucia, St. Vincent & the Grenadines,
and Trinidad & Tobago.
Dependent Territories: Anguilla, British Virgin Islands, Cayman Islands,
Montserrat, and Turks & Caicos Islands.
The other principal Caribbean countries and territories are: Aruba, Cuba,
Dominican Republic, Haiti, Guadeloupe and Martinique (both part of France),
the Netherlands Antilles, and Puerto Rico (part of the United States).
Shedding of UK
Dependence
Jurisdictional
Confusion:
The Caribbean is home to some 25 trademark jurisdictions, each pursuing a
unique path to trademark protection. Simply put, the laws of no two Caribbean
jurisdictions are alike. This article focuses on the Caribbean’s 18
Commonwealth jurisdictions.
Independence from the UK has swept through Caribbean jurisdictions, and
reliance upon UK registrations has largely become a thing of the past. Today,
Grenada remains the sole Caribbean holdout where a UK registration is an
absolute prerequisite to registration. Anguilla, Montserrat, St. Kitts & Nevis, St.
Vincent and Turks & Caicos all have recently enacted major trademark reform.
Tiny Montserrat— already reduced to one-third of its former size because of
volcanic encroachment—has established its own local trademark system while
still granting a special line of access to owners of UK-registered marks. St.
Vincent abandoned its longtime dependence on the UK system in its new
trademarks act, effective May 18, 2004, that sets up an altogether local
trademark regime. Dominica, too, is about to enact a new system, replacing its
act that dates from nearly 50 years ago.
Confusion about jurisdiction continues to afflict many trademark proprietors,
made worse by the coupling of names, as with Antigua & Barbuda, St. Kitts &
Nevis (St. Kitts is more formally known as St. Christopher), St. Vincent & the
Grenadines, Trinidad & Tobago, and Turks & Caicos Islands. Other
jurisdictional names are sometimes confused with their constituent territories,
for example, Netherlands Antilles excludes Aruba but includes Bonaire,
Curacao, Saba, St. Eustatius (also known as Statia) and St. Maarten.
Dutch St. Maarten is of course to be distinguished from St. Martin—the latter
is the French side of the island. Similarly, the U.S. Virgin Islands are often
confused with the British Virgin Islands, which are a British Dependent
Territory.
Guadeloupe and Martinique, among the larger islands in the Caribbean, are
coequal departments of France, ranking with those within the bounds of
France itself—and, as such, these Caribbean islands are covered by
trademark registration in France, as is tiny but chic St. Barths.
Most often, the incorrect jurisdictional assumption is that a single trademark
registration will cover the many countries and territories of the Commonwealth
Caribbean, or that a UK registration somehow extends to most or all of the
English-speaking countries. To the contrary, there are 18 different jurisdictions
within the Commonwealth Caribbean, all different and independent of one
another.
Service Marks:
Another divide is the wide gulf that separates the Dutch-, English-, Frenchand Spanish-speaking Caribbean nations. This translates into another
distinction: that between the English common law jurisdictions and the others
that take after Napoleon.
Service marks can now be registered in nearly all 18 Commonwealth
Caribbean jurisdictions. The only exception is the Bahamas, whose Trade
Marks Act—dating from 1906—is the antique of the region. Service marks are
not even on the legislative agenda, despite the jurisdiction’s exceptionally
heavy reliance on service industries, both finance and tourism.
Official Filing Fees:
Six other Caribbean jurisdictions still allow for registration of a service mark
only if the mark has already been registered in the UK: Antigua & Barbuda,
British Virgin Islands, Cayman Islands, Dominica, Grenada and Guyana. The
Cayman Islands also allows a European Community trade mark to ground a
local service mark application.
As one might expect, the Caribbean’s many jurisdictions have a wide range of
filing fees. Topping the list is St. Kitts & Nevis, which has fees of $385 for one
mark in one class. Each additional class, however, will cost only $30. Add
another mark, and the cost of the extra mark filed simultaneously dips to $237.
Renewal, too, is costly in St. Kitts, where the $237 per class renewal fee
jumps to $385 three months after expiration.
Also expensive is Bermuda, where the registration fee is $360—for each and
every class. Ouch, again, when it comes to renewal—that costs $315 per
class.
On the opposite end of the spectrum are Grenada and Guyana, where fees
barely exceed $10 per application. Some jurisdictions still maintain a
distinction between local and UK-based trademark applications. Anguilla and
Turks & Caicos charge less for UK-based applications; Dominica charges
more.
Belize levies high publication costs. Registration and renewal each cost $125
for publication. Furthermore, each separate transaction incurs a publication
fee of $50. For example, recording a change of name and address requires
publication fees of $50 times two, even when the applications are bundled.
Barbados also can be expensive when it comes to publication, with design
marks costing some $225 for publication alone—more than double the $105
application fee.
Oppositions:
Late filing of renewals incurs an extra fee everywhere. St. Vincent’s new act
provides for escalation of $25 for each month of the 12-month grace period.
“Renewal fee” has an altogether different meaning in the Cayman Islands,
where every trademark owner must pay an annual maintenance fee of $61 for
each registration.
UK norms characterize opposition practice throughout the Commonwealth
Caribbean, with the only real variant being the length of the opposition period.
Seven jurisdictions allow three months, but five jurisdictions allow only one
month to file an opposition notice: Anguilla, the Bahamas, Guyana, Jamaica
and Turks & Caicos Islands. Transmission of trademark office gazettes from
distant jurisdictions can easily take weeks, and, most importantly, an
extension of time for filing an opposition cannot be obtained.
Registry Practices:
The relaxed Caribbean-island lifestyle is sometimes presumed to infuse
Caribbean business practices, but the great majority of jurisdictions have long
demonstrated efficiency in trademark processing, especially Anguilla, Belize
and the Cayman Islands—and also tiny Montserrat, which continues to cope
with the scourge of volcano Soufriere.
On the other hand, there are several countries where delay has become
agonizing, chiefly Antigua, the Bahamas and Guyana. In the Bahamas, the
December 8, 2005, Gazette published marks applied for in April 2002. That
constitutes delay of three years and eight months. In the Bahamas, too, postpublication action can be painfully slow. The delay in publication also impacts
trademark searching, rendering searches inherently out of date.
Other practices that could be improved upon include:
• The Bahamas require a separate signed authorization form for each and
every class.
• In St. Lucia, a proprietor who enters its address after its name at the top,
rather than the bottom, of the power of attorney form meets with automatic
rejection. The form also requires the company’s seal or stamp to be applied;
otherwise, the form must be notarized.
• The Dominica Trade Marks Registry rejects certified copies of UK
Certificates of Registration that have been issued by the UK Patent Office with
a stamped seal (which is fully consistent with UK law) instead of a raised seal.
• St. Vincent & the Grenadines requires two separate signed authorization
forms, both bearing the seal or stamp of the company and full notarization of
both forms. This keeps notaries busy—too busy, some owners complain.
• St. Vincent & the Grenadines also does not issue a filing number or filing
date until after examination of the application and approval on seven
preliminary points—which can result in delays between the time of lodging and
the time of official logging in of applications.
• Trinidad & Tobago is quite critical in examining applications, and for several
years objections have been almost the rule rather than the exception. Just
recently a mark registered in many jurisdictions, including Australia, Canada,
Jamaica, New Zealand, the United Kingdom and the United States, was
refused in Trinidad as lacking distinction.
Reclassification:
WIPO continues to conduct training for Caribbean trademark officials; this past
December, there was a week-long session in St. Lucia attended by officials
from Barbados, Belize, Guyana, Jamaica, St. Kitts & Nevis, Surinam and
Trinidad &Tobago.
The 1938 British classification system still operates in five Caribbean
jurisdictions: Antigua & Barbuda, the Bahamas, British Virgin Islands,
Dominica and Montserrat. Even with enactment of many new trademark acts,
the old British classification system remains a holdover in some jurisdictions
that have abandoned it but now are being confronted with applications to
reclassify registered goods into their corresponding International Classes.
Continued use of the old British classification system means two things: no
service marks and antiquated categorization. Nearly 70 years old, the 1938
classification was designed more with component materials than actual goods
in mind. There are, for example, 13 different classes that cover goods made of
cotton, linen, wool, silk and hemp.
Applications that require the British system to be applied to goods that have
already had International Classes assigned can sometimes result in
messylooking match-ups. Often the application must cover more classes or
must resort to the old system’s catchalls—which sometimes catch more than
is comfortable. The 1938 classification system also speaks of “carriages,”
which covers cars, trucks and planes, and “horological instruments,” which
means watches and clocks. Finally, there is old British Class 50, which covers
“Miscellaneous,” but also specifically covers tobacco pipes, walking sticks,
plate powder, buttons, hose and other odd items—all in 10 separate subclasses that end with the catchall “other goods.”
Counterfit Goods:
Caribbean Single
Market & Caribbean
Court of Justice:
The eighth edition of the Nice International Classification Convention governs
13 Commonwealth Caribbean jurisdictions. Trinidad & Tobago and Turks &
Caicos still rely on the seventh edition.
Corrective action against counterfeit LEVI’S, TOMMY HILFIGER and
DOCKERS goods was taken recently in Belize. In each of these cases the
U.S. Embassy became directly involved in the seizures. To invoke such
action, however, it was necessary for company officials to personally confirm
that the suspect goods were counterfeit.
The Caribbean Single Market and Economy (CSME) treaty went into effect
January 1, 2006, with Barbados, Belize, Guyana, Jamaica, Surinam and
Trinidad & Tobago as the first full members. Montserrat has applied for
associate status. The Bahamas will not join because of a provision that allows
free movement of workers among signatory nations. Other nations in the 15member Caribbean Community are moving or at least debating whether to
join.
The first sitting of the Caribbean Court of Justice (CCJ) took place at its
headquarters in Trinidad & Tobago on August 8, 2005, with the former chief
justice of Trinidad & Tobago sworn in as the court’s first president. The court is
designed to replace the UK Privy Council as the final appellate body for the
Commonwealth Caribbean. Sitting in London, the Privy Council had decided
Caribbean appeals since 1833. However, only two countries—Barbados and
Guyana—have agreed thus far to use the CCJ as their court of last resort in all
civil and criminal matters. Other countries have agreed to jurisdiction over
trade disputes arising out of the Caribbean Community and Common Market
(CARICOM) treaty.
COSTA RICA
Uri Weinstok M.
WEINSTOK Abogados
uweinstok@weinstok.co.cr
www.weinstok.co.cr
1. Case Report:
Topic:
When
What Happened:
REPRETEL v. TICOFUTBOL
Copyrights, new media
June 2006
A few weeks prior to the Football (soccer) World Cup in Germany, an internet
site started broadcasting the games of the Costa Rican national team by
taking the signal from the exclusive broadcaster and streaming it through their
site.
The broadcaster (REPRETEL) sent a cease and desist letter, informing them
their intention to pursue legal action unless the unauthorized use of the TV
signal would stop.
Comment:
2. Case Report:
Topic:
Where:
When:
What Happened:
Site operators issued a public release, stating that they didn’t violate any Law,
but agreeing to stop with their transmissions.
This case may be a sample of things to come with the explosion of new
technologies and media. Even if the case did not reach the Courts, it put on
the table the challenges imposed when traditional Laws and remedies are
intended to be applied to non-traditional media.
CR Box Express.com v. RACSA
SPAM
Constitutional Hall of the Supreme Court
June 2006
Applicant filed a complaint against a regulation issued by RACSA (official and
state monopoly in the supply of internet services.
The main argument against the regulation (which adopts the “Opt-in”
standard) was based on the harsh penalties imposed by it contravene freedom
of speech, freedom of commerce, and rights of consumers to be informed. By
blocking IP addresses and taking other measures against spammers.
The Court dismissed the claim, arguing that the harm caused to networks and
the nuisance to the general public caused by spammers justified the measures
taken by the regulation.
Comment:
Additionally, the court concluded that consumer rights are not negatively
affected by the regulations, since those who are interested in receiving the
information is free to access it through alternate methods like web searching
and the like. On the other hand, the prohibition of Spamming protects
consumers from assuming the costs associated to receiving unwanted
information.
Internet regulation is far behind in Costa Rica, this regulation is applicable only
to services provided by RACSA (which are the majority). Hence, there is no
current rule of general application in place in Costa Rica.
3. Case Report:
Topic:
Where:
When:
What Happened:
Junta de Proteccion Social (JPS) v. Alejandro Rueda
Lotteries, games of chance, promotions
Criminal Tribunal, First Circuit of San Jose
September 2006
JPS, operator of the national lottery filed a criminal complaint against
defendant, for operating what they consider an illegal lottery in his TV show,
which is broadcasted weekly on Sunday afternoons.
During the show, participants may send instant messages through a (paid) call
to a 900 number, and prizes are raffled among them. JPS considered that
since there is no element of chance involved, and since this activity is not
made in connection with the advertising of a product, it amounts an illegal
lottery.
Comment:
The Tribunal considered that prima facie, there appears to be a criminal
infraction, and ordered that the case should go to trial.
Promotional activities through value added services became very popular in
the last years. However, some of them seem to be more a raffle or lottery and
less of a game of chance.
JPS expressly affirmed that they chose the case of the highest visibility, in
order to set an example and persuade others from doing the same.
Additionally, 16 other cases are being investigated at the administrative level.
4. Case Report:
Topic:
Where:
When:
What Happened:
Ministry of Health v. Coca-Cola
Food advertising, Child obesity
Ministry of Health
November 2006
Following an order by the Ministry of Health, a TV ad of Coca-Cola was pulled
off the air, because the message promoted unhealthy eating habits.
In the commercial, a kid talks about the food served by his mother, showing
displeasure for the vegetables, salads, fish and other meals, since the only
thing he really enjoys is Coca-Cola every day of the week.
The Ministry of health argued that messages of this type affect the success of
public health policies promoted by the authorities, and demanded that the ad
should be immediately pulled off.
Comment:
She also complained about advertising in general, for making unhealthy
products “too attractive” for young population.
Legal regulations on food advertising include only general and basic
principles, allowing authorities to intervene whenever they feel there is a public
health issue.
While these powers are rarely exercised, in this particular case no one
complained against the measures taken, since the negative message
contained in the ad was very clear.
Cases like this one may spark the debate about advertising and obesity
issues, which have not yet become as big of an issue as in other places.
5. Case Report:
Topic:
Where:
When:
What Happened:
Comment:
6. Regulation:
Topic:
Who:
When:
What Happened:
Mejía Godoy v. PUSC and JBQ (Grey)
Copyrights and advertising
Supreme Court of Justice
February 2007
Under vote # 07-127, the Supreme Court confirmed a ruling against the
Advertising Agency JBQ (Grey) and the Political Party then in power (PUSC).
The case refers to the use of a song written by a Nicaraguan folk singer in a
disc that was distributed as part of the presidential campaign of Abel Pacheco
(who eventually won the elections). The disc incorrectly stated that Pacheco
was the author of the lyrics, while in reality the lyrics where written by the
plaintiff, but based on a short story written by Pacheco.
The court concluded that the moral rights of the author were infringed, and
imposed damages to be paid by both the advertiser and the advertising
agency.
Two important features of this case deserve special attention: a) The claim
was based solely on moral rights, because the copyrights were actually paid
by defendants; and b) The advertising agency was sued and also found liable,
which is very unusual in advertising cases, where most of the heat is normally
taken by the advertiser.
Handbook of Good Practices towards Consumers
Consumer protection, self-regulation, advertising.
National Consumers Commission
March 2007
On March 15th, the "Comision Nacional del Consumidor" (Official Agency for
Consumer Protection issues in Costa Rica) announced the official publication
of the "Handbook of Good Practices towards Consumers". This document is
open for voluntary adherence by the commerce in general. Once adopted, it
becomes mandatory for those who accept it.
In general, the document serves as a guideline for the interpretation of the
local Consumer Protection Law, as well as also filling some gaps that are not
covered by it. It also intends to raise the standard of protection followed by all
providers of products and services in their relationship with consumers, by
adapting locally most of internationally recognized best practices.
The main subjects covered by the handbook are: Product safety, Product
liability, Information supplied to consumers, Advertising, Promotions,
guarantees, On-line sales, and others.
Comment:
Parallely, all companies who adopt the handbook and implement a compliance
program in accordance to it will receive a public distinction by the Ministry of
Commerce, in which they are recognized a "Consumer Friendly". This
distinction may be publicly advertised by beneficiary enterprises.
This initiative has been described as the main advance in consumer regulation
in the last years. Its main benefic is that it provides an opportunity to raise the
standard without going through the process of issuing new regulations, and
also it benefits commerce by decreasing the level of uncertainty of the Law in
some areas.
DENMARK
Johan Løje
Hans Flensted – Jensen
Sandel, Løje & Wallberg
jl@slw.dk
hfj@slw.dk
www.slw.dk
1. Topic:
Where:
When:
Case:
Advertising with discount coupons not prohibited
Maritime and Commercial Court
March 2007
In January 2004 a law firm launched a campaign in the newspapers and on the
internet, giving discount to consumers receiving legal counselling. According to
the campaign the discount was retrieved by presenting a coupon to be cut of the
newspaper or printed from the internet. 17 customers actually received a
discount based on the coupons.
The Consumer Ombudsman claimed this to be a violation of the Danish
Marketing Practices Act’s (MPA) prohibition of discount by coupons made
available prior to the purchase. On the other hand, the law firm claimed the MPA
only prohibits the actual granting of the discount and not the advertising of such
discount with coupons.
Thus, the most important issue for the Court to decide was whether the mere
advertising with coupons is to be considered as a violation of the MPA. The
majority of the bench held the opinion that such advertising is not prohibited by
the MPA. The violation has not been consummated until an actual purchase has
been made, based on the coupons provided prior to the purchase. The minority
of the bench disagreed, since the main motive of the prohibition is to protect
consumers from the inconvenience that is connected to such coupons (cutting
the paper etc.)
Comments:
2. Topic:
Where:
When:
Case:
However, the law firm was acquitted of the charges based on the majority’s
judgment.
The judgment seems to give a wide margin of discretion when it comes to the
prohibition of the use of coupons as a marketing measure. When the prohibition
was adopted in the Danish parliament in 1993, one of the main purposes was to
avoid the inconvenience for the consumers in connection to such coupons.
Nevertheless, the court decides that the advertising and issuing of the coupons
is permitted, even though such measures are inevitably combined with an actual
granting of a discount when the purchase is concluded.
Definition of advertisement – illegal/legal tobacco campaign
The Danish High Court
March 2007
Philip Morris launched a campaign in August 2004 in Danish newspapers. Two
adverts were launched. One said: “Is it possible to manufacture a cigarette that
is less injurious?” In connection to this question was a text about Philip Morris’
efforts in reducing health risks in connection to smoking. It also said that the best
way to avoid health risks is to stop smoking.
The other advert said: “Don’t think that cigarettes with less tar are safer or better
for you.” Following this statement was a text about how damaging tar and
nicotine is for the health, and that the best thing is to stop smoking.
Both adverts were concluded by the name and address of Philip Morris.
The Consumer Ombudsman claimed these adverts to be a violation of the
prohibition of advertising of tobacco. Even though the adverts were not with the
intent of specific sale, the ombudsman claimed that the campaign was branding
of Philip Morris, which was to be considered as a violation of the prohibition.
Philip Morris claimed that the prohibition does not include cultivation of image,
and that Philip Morris only took part in the public debate about smoking and
health risks connected to it.
The court found that the first advert was violation of the prohibition since it
included comments about the priorities at Philip Morris of developing more
healthy cigarettes. However, the other one the court did not found to be a
violation of the prohibition of advertising of tobacco. The court stated that it was
only a campaign which informed about the damaging effects of tobacco without
emphasizing Philip Morris.
Comments:
3. Topic:
Where:
When:
Case:
Thus, Philip Morris was fined DKK 200.000,00 (approx. 27.000,00 Euro).
The decision of the Court is a strictly legal evaluation of the campaign. Even
though the campaign was not with the intent of specific sale, it is undoubtedly a
part of Philip Morris’ branding policy. Such branding will – if successful – have an
effect on the sale of Philip Morris products. Thus, the decision of the court seems
to be a misunderstanding of the definition of advertisements, since the court only
accepts adverts of specific products to advertisements and not branding
campaigns.
New Rules on Information to Consumers
The Danish Parliament
December 2006
The Danish Parliament has in December 2006, adopted an amendment to the
Danish Marketing Practices Act which implements Directive 2005/29/EC
concerning unfair business-to-consumer commercial practice. According to the
new provision any invitation to purchase must be supplemented with certain
information about the product, price and business. This information must be
provided if it is apparent that the business is inviting the consumer to purchase a
specific product. This also goes for display windows, where some rather
expensive stores normally avoid pricing the products.
If however, a business is advertising for a trademark – or brand – without
referring to specific products, no information must be given. The same goes for
launching of a new series of products, without specifying the individual products.
Comments::
Any violation of the provision is punishable, and can be met with a fine. The Act
will come into force on 1 December 2007.
The new provision is yet another step in the name of consumer protection. There
is a general tendency towards stricter rules on protection of consumers. These
must – at the earliest possible stage – have as most information about the
product as possible.
DOMINICAN REPUBLIC
Jaime R. Angeles
Oficina Jaime Angeles
jaime@angeleslegal.com
www.angeleslegal.com
1. Topic:
Where:
When:
What Happened:
Comments:
2. Topic:
Where:
When:
What Happened:
Comments:
3. Topic:
Where:
When:
What Happened:
Comments:
Implementation DR-CAFTA (Free Trade Agreement with USA / CA)
Dominican Republic
March 1, 2007
The Free Trade Agreement signed on August 2004 with USA and Central
American Countries (Dominican Republic, Guatemala, El Salvador, Honduras,
Nicaragua and Costa Rica)
The DR-CAFTA brought new rules for investments, distribution and Intellectual
Property Rights. In the trademarks area, “non-traditional trademarks” will be
allowed and new copyright rules are applied.
Fair use recognition / Pictures in book
Dominican Republic
December 12, 2006
Verizon Dominicana (a full subsidiary of Verizon Communications) published a
book about the Dominican Music in which there were several pictures of local
artist. A painting of Mr. Tavito Vasquez was included. The plaintiffs were the
copyright holders of the painting.
The Court of Appeals considered that there was no case (ruled in favor of the
defendant) because it considered that the fair use rule had to be applied to this
case, because: a) it was only a portion of the picture, b) it was a non profit
publication, c) it was a cultural publication, according to the Berne Convention,
d) it was a painting from a public performance made by Mr. Vasquez
Interesting decision, taking into account that it is the first precedent of
application of fair use rules in the Dominican Republic.
Use of personal image
Dominican Republic
November 16, 2006
Verizon Dominicana (a full subsidiary of Verizon Communications) made a
promotion with their calling cards using different sports events and
personalities (sportsmen / women). The advertising agency licensed all the
personalities involved, but did not obtain authorization from the volleyball
players of the Dominican team that appeared in the calling card. The
Dominican Volleyball Federation acted as plaintiff.
The judge rejected the claim, on the basis that image and personality’s rights
can only be enforced by the person itself that considered his / her image has
been improperly used, unless there is a POA or legal authorization to claim /
administrate the image and personalities rights. The Dominican Volleyball
Federation did not have any kind of management / authorization / license of
these players’ rights.
First image / personality decision in the Dominican Republic.
ECUADOR
Rodrigo Bermeo
Diego Klier
Bermeo & Bermeo
bblaw@uio.satnet.net
www.bermeolaw.com
1. Topic:
Legislation:
Where:
When:
Current legislation:
Advertising campaign by Phillip Morris “in order to prevent the selling of
cigarettes to minors.”
Advertising to children
ECUADOR
Active campaign during the last years
The Code for Children and Adolescents establishes the prohibition to divulge
inadequate information for boys, girls, and adolescents during family
schedules and in publications addressed to the family, boys, girls, and
adolescents.
The Code of Ethics and Advertising Self-Regulation (Arts. 24 and 25) states
that “the content and presentation of advertisements preceding, included in, or
following programs for children or youngsters shall be controlled.
Advertisements addressed to children or youngsters: a) must respect the
ingenuity, credibility, inexperience, and sense of loyalty of the minors; b) must
not be morally offensive against the minor, and, c) shall not be admitted if they
show an implicit inferiority of the minor, if this last one does not consume the
product that is being offered”.
Art. 21 provides that those advertisements that do not specify the special
considerations regarding use of the product by the children shall not be
allowed when said considerations are deemed essential.
The Consumer’s Defense Law sanctions abusive advertising and recognizes
that this occurs when the commercial communication is capable of taking
advantage of the lack of maturity of children and adolescents, inducing them
to behave in a prejudicial or dangerous way against their health and personal
or collective security. It is prohibited to deceivingly take advantage of the
consumer’s age, in order to sell him/her specific goods or services.
On the other side, the same law, without making any distinctions between
children and adults, states that “pertaining to products whose use would
potentially be dangerous for the health or the physical integrity of the
consumers, the supplier must incorporate in the advertisements the necessary
warnings, so that their use is carried out in the safest possible way”.
Notwithstanding that there are basic provisions under Ecuadorian legislation; a
lot of aspects remain under poor or absolutely no regulation.
Comments:
Phillip Morris currently handles an advertising campaign “in order to prevent
selling of cigarettes to minors”. Campaign consists basically in the
distribution of educational materials to retailers, such as ash trays, pamphlets,
posters and the like with signals stating “I fulfill the law; I don’t sell
cigarettes to minors”.
Unfortunately, in addition to poor legislation, the Ecuadorian justice system is
extremely bad so we were not able to find at least one case as precedent
against a retailer for selling cigarettes to minors. In real life, in Ecuador
children could easily buy cigarettes with no limitation at all.
In other words, activists against tobacco may argue that PM handles their
campaign, taking advantage of poor Ecuadorian regulation of advertisements
and taking advantage of the bad justice system in Ecuador. So in real life their
campaign could be obtaining exactly the opposite and that Phillip Morris
actually increases sales of cigarettes through this campaign since it is well
known that minors actually try to look “adult”. More information about this
campaign could be revised in:
http://www.philipmorrisinternational.com/EC/pages/spa_MX/ysp/YSP.asp
FINLAND
Bernt Juthström
Mikael Segercrantz
Roschier Holmberg
bernt.juthstrom@roschier.com
mikael.segercrantz@roscheir.com
www.roschier.com
1. Topic:
Who:
When:
What Happened:
Distribution of free samples of tobacco products to consumers considered illegal
advertising
The National Product Control Agency for Welfare and Health (STTV)
15 June 2006
In Finland, the advertising of tobacco products is prohibited entirely by law. It has
occurred that some tobacco companies use Finland as a testing place for
determining the boundaries for advertising of tobacco products. This is due to
the fact that should a certain tobacco campaign be allowed in Finland, it is likely
to be legal globally.
Since 2006, the National Product Control Agency for Welfare and Health (STTV),
which, inter alia, controls that the ban on advertising of tobacco products is
complied with, has been dealing with several complaints concerning the
advertising of tobacco products. In particular, the giving out of free samples of
tobacco products in various circumstances, such as in the context of movie
premieres or on cruises to Estonia, has been the subject of the complaints.
STTV has subsequently, on 15 June 2006, rendered a decision concerning the
distribution of free samples of tobacco products.
STTV considered that when distributing free tobacco products, the tobacco
company had been using means that were in violation of the ban on advertising
of tobacco products, which is stipulated in the Finnish Tobacco Act. Furthermore,
the campaign was in violation of good practice and the means employed were
extremely improper and unfair towards consumers. What was considered to be
the most severe factor was that free tobacco products had also been given out to
minors who had lied about their age. STTV prohibited the tobacco company from
repeating such illegal marketing of tobacco products and imposed a conditional
fine of EUR 150 000 to the company. The tobacco company did not appeal the
decision to the Market Court.
2. Topic:
Who:
When:
What Happened:
Illegal indirect marketing of prescription only medicines to consumers
The National Agency for Medicines
15 December 2006
The National Agency for Medicines (NAM) has reacted to the marketing
practices of pharmaceutical companies where consumers have been informed
about prescription only medicines via e.g. TV, Internet and data sheets sent to
their homes. According to the Finnish Medicines Act, it is prohibited to market
prescription only medicines to consumers. The Medicines Decree further
stipulates that marketing of medicinal products covers, for instance, all
communications and inducement intended for ordering, purchasing or use of
prescription only medicines.
NAM has addressed the issue by sending a warning letter to the pharmaceutical
companies in December 2006 stating that such information practices are to a
certain extent in violation of the Medicines Act and against the objective of the
Act. Moreover, NAM has emphasized that it will continue to pay special attention
to the content of companies’ medicinal information and intervene whenever it
discovers indirect marketing of prescription only medicines to consumers.
NAM has also proposed that the Ministry of Social Affairs and Health would
revise the provisions of the Medicines Act regarding marketing of prescription
only medicines to consumers, in order to avoid problems relating to the
interpretation of the Act in the future.
3. Topic:
Who:
When:
What Happened:
Unfair automatic chaining of fixed term contracts
The Consumer Agency
5 October 2006
The Consumer Agency has decided that teleoperator TeliaSonera Finland Oy
may not chain its telephone subscription contracts automatically after the expiry
of the contract period. This decision also presents the general policy of the
Consumer Agency towards chaining of fixed term contracts.
The traditional concept of a fixed term contract refers to a contract that is in force
for a fixed period of time, after which it is expired. After the expiry of the contract
the company may offer a new contract to the customer. A new contract cannot,
however, be made without the customer’s acceptance. The Consumer Agency
stated that TeliaSonera’s policy is in obvious violation of this general principle.
The Consumer Agency considered that the chaining of the contracts was
TeliaSonera Oy’s way to tie its customers to a certain contract. The contract in
question was a fixed term contract for the period of two years and the customer
was able to terminate the contract until two weeks before the end of the contract
period. If the contract was not terminated within the stipulated time, it would
continue to be in force automatically for one year at a time. The Consumer
Agency found this type of chaining of contracts unreasonable and unfair for the
consumers. Furthermore, no other teleoperators any longer tie their customers
by chaining the contracts. According to the Consumer Agency, the common
problem for all the operators is, however, that the fixed term nature of the
contracts is not clearly stated in the marketing of telephone subscriptions.
4. Topic:
Who:
When:
What Happened:
Draft guidelines for regular customer marketing strongly opposed by the interest
groups of the trade
The Consumer Ombudsman
29 December 2006
The Consumer Ombudsman has published draft guidelines for regular
customers marketing. These draft guidelines have raised a remarkable
opposition from the interest groups of the trade who have notably expressed
their criticism towards the guidelines.
According to the interest groups of the trade, the draft guidelines by the
Consumer Ombudsman are unreasonable and unrealistic because should they
be realized, they could entirely deteriorate the current viable regular customer
marketing system. All the interest groups of the trade are nearly unanimous in
their rejection of the draft guidelines and their alleged shortcomings.
The interest groups of the trade present and emphasize the view that, overall,
consumers are content with the current regular customer marketing systems and
they contain several benefits which are worth preserving. Consequently, the draft
guidelines can be considered unnecessary and their apparent negative tone
towards regular customer marketing systems is ungrounded and unexpected.
Furthermore, several interest groups of the trade require shortening of the
guidelines and mitigating of some of the statements as they are rather rigid in the
current form of the draft guidelines. The interest groups of the trade have also
pointed out that the draft guidelines should have been prepared in co-operation
with the interest groups of the trade which would in all likelihood have improved
the quality of the draft guidelines.
5. Topic:
Who:
When:
What Happened:
Distribution of adverts in connection of newspapers not considered unfair
The Market Court
15 June 2006
The largest newspaper in Finland, Helsingin Sanomat, had been distributing
separate adverts in connection with its newspaper to its readers. These adverts
were also distributed to recipients that had sign “no advertisements” on their
door. The Consumer Ombudsman had claimed that this direct distribution of
adverts to households that had specifially noted their refusal to receive such mail
was in violation of good practice and unfair towards consumers in general under
the Consumer Protection Act. The Market Court ruled on the matter and
considered – against the opinion of the Consumer Ombudsman – that the
distribution of ad leaflets in connection with distributing Helsingin Sanomat was
not in violation of the Consumer Protection Act.
The Consumer Ombudsman had also claimed that the contract practice of
Helsingin Sanomat was not acceptable from the viewpoint of Consumer
Protection Act as it set the delivery of adverts within the newspapers as the
precondition for subscribing to the paper. The Market Court once again took a
dissenting stand and stated that such a conditional contract policy could not be
considered unfair towards consumers in the meaning of the Consumer
Protection Act.
The third claim of the Consumer Ombudsman was, however, successful. The
Consumer Ombudsman had claimed that the TV commercial of Helsingin
Sanomat which did not give information on the exact price of the subscription
period or individual price of a newspaper was unfair marketing towards
consumers and hence in violation of the Consumer Protection Act. The Market
Court accepted the claim and ruled that the TV commercial was in violation of
the Consumer Protection Act since it had been executed without giving
information on the price as set forth by the Decree on the indication of the prices
in marketing consumer products.
6. Topic:
Who:
When:
What Happened:
Unfair marketing of telephone subscriptions
The Market Court
29 September 2006
The two biggest teleoperators in Finland, Elisa Oyj and TeliaSonera Oyj, were
the parties to this case before the Market Court concerning unfair marketing of
telephone subscriptions. The applicant, Elisa Oyj, had claimed that TeliaSonera
Oyj had been using unfair marketing practices where marketing its telephone
subscriptions, which were in violation of the Unfair Business Practices Act.
Elisa Oyj claimed that these unfair marketing practices included: using
misleading expressions concerning pricing and creating the expectations on the
free of charge nature of the service, e.g. 0 €/min; presenting misleading and
unfair comparison of prices to competitors’ prices e.g. by comparing services
from different categories, selecting own cheapest services to comparison with
competitors’ more expensive ones, using outdated information on competitors’
prices and using method that does not take into account the overall price of the
services of the competitors but merely the certain pricing system; using
derogatory expressions that are against good practice to describe competitors;
and practising misleading marketing that does not give information to the
consumers in a clear manner about the prices outside certain limit in a
campaign.
The Market Court considered that all of these claims were grounded and
consequently ruled that TelisaSonera Oyj had been using such unfair marketing
practices in its campaign of telephone subscriptions that were in violation of the
Unfair Business Practices Act. The Market Court prohibited TeliaSonera Oyj
from using such illegal marketing practices in its advertising of telephone
subscriptions or services related to them under the threat of a conditional fine of
EUR 15.
FRANCE
Michel Béjot
Caroline Bouvier
Bernard Hertz Béjot
bejot2@aol.com
cbouvier@bhbfrance.com
www.bhbfrance.com
1. Legislation
Topic:
Who:
When:
Where:
What happened:
Advertising for food and the fight against obesity
Secretary of Health and Solidarity
Decree of February 27, 2007
France
With effect from February 28, 2007, health messages have to be added to
advertising for manufactured food products and drinks on television, cinema,
radio, newspaper and on posters and marketing flyers of supermarket
distribution.
The messages are the following:
-
“For your health, eat at least five fruits and vegetables per day”;
“For your health, practice sport regularly”;
“For your health, do not eat too rich, too sugared, too salted”,
“For your health keep off eating outside meals”.
Concerning the TV advertising, the health message will have to be included in a
fixed or moving window streamer (bandeau fixe ou défilant) or in a screen
following the advertising message. When possible, the health message will have
to be supplemented, at the end of the advertising, by a reference to the website
www.mangerbouger.fr.
Concerning the scope of the requirement and notably the scope covered by the
wording the “manufactured products”, the Department of Health and Solidarity
issued a document (a Note) on February 28, 2007 notably specifying the food
products concerned.
Concerning the drinks, the advertising for drinks without added sugar, salt or
sugar substitutes (édulcorant de synthèse) will not be submitted to the health
message (for instance, coffee, tea, herb tea, chicory). Similarly, fruit juices and
milk that do not contain added sugar, salt or sugar substitute should not be
concerned by the health message.
Comment:
Concerning manufactured food products, the products concerned are those
prepared with added ingredients (“ajouts”) or those that have been transformed
in their substance. Therefore, the products available to the public “as is“are
excluded (for instance fruits and vegetables, spices and aromatics). The
products that have just been cut (fresh meat or fish), packed (for instance eggs
in carton, oranges’ bag, honey as defined by regulation), frozen and/or tinned
without any other addition except water, are not concerned.
A French Consumer Association (UFC-Que Choisir) conducted an inquiry among
704 persons (parents and children aged 8 and more). The Association broadcast
an ad promoting chocolate cereals in which the following message was added:
“For your health, do not eat too rich, too sugared, too salted”.
The results are disconcerting: 48 % of the interviewed persons (including 57 %
of children) did not see the message!
Then, the researcher re-broadcast the ad by designating the window streamer.
After that, 32 % of the parents and 42 % of the children declared that they had
difficulties to read it since (i) their attention was devoted to the images of the ad
(37 % of the answers), (ii) the characters were too small (32 %), (iii) the window
streamer moved too fast (26 %).
Worse. When asked to explain the message in light of the product advertised, 66
% of the interviewed persons responded that the cereals are healthy
(“équilibrés”), while, the advertised product contains 37 % of sugar….
In light of this inquiry, UFC-Que Choisir considers that the mandatory message
is too general and does not procure to the consumer any practical means to
determine the nutritional advantages of the food products.
A measure of the impact of the mandatory health messages will require that they
be broadcast for a few months.
2. Legislation
Topic:
Who:
When:
Where:
What happened:
Comment:
Advertising for the distribution sector allowed on TV
French Government
Decree of October 7, 2003 – Implementation in January 2007 concerning all
French TV channels
France
The economic sectors which were prohibited from advertising on television in
France were subject to the Decree of October 7, 2003 which came into force on
January 1, 2004 concerning certain sectors, such as press (TV advertising is
allowed for the press sector on all TV channels since January 1, 2004) and book
publishing (TV advertising is allowed for the book publishing sector and the
distribution sector since January 1, 2004, on cable and satellite channels only).
Concerning the distribution sector, the authorization to advertise products on the
TV wireless network (réseau hertzien; i.e. cable and satellite excluded), the
authorization had been postponed until January 1, 2007.
The CSA (Conseil Supérieur de l’Audiovisuel) issued a Recommendation in
2004 concerning what may and what may not be done in this context.
The BVP also explained, in a Recommendation dated June 2006, how to comply
with the new regulation.
Notably, all advertising promoting commercial events are excluded from the
authorized TV advertising for the distribution sector, irrespective of whether or
not the operations are linked with the offer of products or services. This means
that not only the advertising for a game or a contest organized by a distributor,
but also the advertising for the exceptional opening of a distributor’s store, are
excluded.
However, the announcement of the arrival of a product is not considered as a
prohibited advertising if such announcement is not linked to a limited duration or
a limited inventory.
Similarly, while the announcement of temporary advantages or services (for
instance exceptional mortgage rates) is prohibited on TV, the advertising for
permanent advantages (such as fidelity cards) is allowed.
Further, if a distributor extends his scope of activities (for instance, it opens a
cafeteria), within this context, it loses its distributor’s “hat” and is entitled to
advertise, on TV, commercial events linked to this new activity.
3. Case Law
Topic:
Who:
When:
Where:
What happened:
Three fashion photographers against a number of the famous fashion
businesses: the fashion couturiers won.
Three fashion photographers
Paris Court of appeal, January 17, 2007
France
A number of the famous fashion businesses, among which Dior, Chanel,
Hermès, Jean-Paul Gaultier, Vuitton and Givenchy, brought an action against
three fashion photographers on the ground that they posted on the Internet,
without their authorization, the pictures they took during their fashion shows. Two
of them (one Brazilian and one American) posted tens of photographs of dresses
designed by famous couturiers a few hours after their shows. These
photographs were notably available, for a fee, on an American website.
While the first degree criminal court (Tribunal correctionnel) acquitted the three
photographers, the Paris Court of appeal overruled the judgment on January 17,
2007.
According to the rules from the Fashion Federation destined to monitor the
exploitation of the pictures, it is prohibited to photograph more than 7 models by
dressmaker. In addition, these photographs can only be broadcast by the press
medium which accredited the photographers to attend the fashion shows.
Comment:
4. Case Law
Topic:
Who:
When:
Where:
What happened:
The Paris Court of appeal considered that "the fashion businesses have
copyrights on their creations and on their shows insofar as they are original" [i.e.,
the criterion allowing the acknowledgment of the French copyright].
While one of the defendants’ lawyers considers that the court showed
conservatism by applying the copyright case law to this case; according to the
Fashion Federation, however, “the court order reminds that, at the time of the
new technologies allowing the anarchic broadcasting of fashion pictures, the use
of new media remains submitted to a legal framework”.
Advertising and religion do not mix so badly…(epilogue)
Marithé et François Girbaud
High Court (Cour de cassation), November 14, 2006
France
The trendy blue jeans brand Marithé et François Girbaud had a poster and
magazine campaign created to promote its products. The ad was a picture
based on Leonardo da Vinci’s Last Supper (“La Cène”), showing twelve women
and a partially naked man (see ad below).
The first instance decision (March 10, 2005), confirmed by the Court of appeal of
Paris in a court order dated April 8, 2005, held that the ad was likely to disturb
the Catholics who would see it. The court also held that an ad, having a
commercial purpose, should not participate in debates such as religion.
Comment:
The High Court overruled the Court of appeal’s court order by considering that
“the sole parody of the form given to the representation of la Cène, which did not
have the aim to offend the Catholics, nor to affect them in their consideration
because of their obedience, does not constitute the insult [injure], personal
attack destined to a group of person because of their religious appurtenances”.
To establish the offence of insult, the High Court considers that the insult should
be objectively established towards a definite group, which was not the case in
this instance according to the French High Court.
5. Self-regulation
Topic:
Who:
When:
Where:
What happened:
Comment:
Advertising and violence
Dolce Gabbana
October 20, 2006
France
Dolce Gabbana recently published an ad in the French press which represents a
very dark theatrical picture with young persons dressed in dark, a naked women
and a killed/dying man (either with a bullet in the forehead or with a knife wound
on the chest) lied down on the floor. A character holding the murder weapon (a
pistol or a knife) is standing, rooted.
This ad disturbed many consumers who sent letters to the BVP (Bureau de
Vérification de la Publicité), which required the advertisers and the medium
concerned to stop publishing the controversial ad.
The BVP held that this ad violated professional rules which prohibit violence in
ads. Notably the Recommendation called “image of the Human person” provides
that “the advertising shall avoid any scene of violence, direct or implied and shall
not urge on violence, moral or physical”. Further “the notion of violence covers all
illegal and reprehensible acts sanctioned by the current regulation. The direct
violence implies the representation of a violent act per se; the suggested
violence is qualified by an atmosphere, a context or by the result of an act of
violence”.
GERMANY
Dr. Søren Pietzcker
Dominik Eickemeier
Dr. Verena Hoehne,
Rudolph du Mesnil
Heuking Kühn Lüer Wojtek
s.pietzcker@heuking.de
d.eickemeier@heuking.de
v.hoene@heuking.de
r.dumesnil@heuking.de
www.heuking.de
1. Topic:
Where:
When:
Facts:
Cancellation Notification in Distant Selling Agreements
Court of Appeals, Berlin
2006
A distant seller of goods operating through eBay referred to his standard terms
of business, which stated a term of two weeks within which a consumer/buyer
could cancel the sales contract (abandonment).
The term of abandonment in distance selling agreements is regulated by § 312
lit. d Para. 1 and § 355 of the German Civil Code (BGB) and is normally two
weeks (§ 355 Para. 1, second sentence). However, the term is one month if the
information – which must be submitted in “text form” – is submitted only after
conclusion of the agreement (§ 355 Para. 2, second sentence).
The Court of Appeals held that the information in “text form” had not been
received in time. According to § 126 lit. b BGB, the “text form” requirement, if
submitted via the internet, is only met if the information is actually perpetuated by
the receiving customer, be it in the shape of a printout of the page or as a
download, i.e. storage on the recipient’s hard disk. The seller is however,
normally unable to prove this form of receipt. Accordingly, the “text form”
requirement is only met if the text has been sent to the recipient via e-mail or fax.
However, in business areas such as eBay, the goods are advertised with a
binding offer in the meaning of the law, which means that an acceptance by the
consumer results in a binding purchase agreement. Hence, the information
regarding the right to abandonment is received after and not before conclusion of
the agreement. In most of these cases, the information is sent via e-mail or
together with the delivery of the goods, rendering the term of one month (§ 355
Para. 2, second sentence) applicable.
Comments:
In addition, since the two-week term of abandonment was, in the case at hand,
wrong and therefore misleading, the seller had not properly informed the
consumer about his right to abandonment. In those cases, however, according §
355 Para. 3 BGB, the right to abandonment does not end at all.
Distant sellers must have regard to the fact that the mere option for the
consumer to read the information regarding the right of abandonment on the
internet or the seller’s standard terms of business does not meet the “text form”
requirement (because not “sent”). In addition, the provision of such information
on the internet or in standard terms of business is nevertheless required
according to § 312 lit. c Para. 1 BGB and § 1 of the Civil Code Information
Regulation
2. Topic:
Where:
When:
Facts:
Keyword Advertising: Courts still indifferent; Metatags
Higher District Court of Düsseldorf (Court File I-20 U 79/06)
Judgment dated 23 January 2007
After Germany’s Federal Court of Justice (BGH) has decided the dispute
whether Metatags infringe trademark law in Germany and confirmed the
prevailing opinion that the use of trademarks or company names of third parties
in the Metatags of a website is a trademark infringement (decision dated 18 May
2006, Court file I-ZR 183/03), many have thought that the courts would
unanimously adapt this decision for keyword purchase cases (keyword
advertising via the google tool “AdWords”). Instead, the Higher Court of
Düsseldorf stressed its independent position and denied both a trademark
infringement as well as a violation of the law against unfair competition (UWG) in
general.
As a coincidence, at the same time, a US District Court almost used the same
arguments in a similar case (Wentworth v. Settlement Funding, Civic Action No.
06-0597 (E.D. Pa. Jan. 4, 2007). Although internet users would be guided to
advertisements of the defendant, such users would not be confused by the offer,
as the link to defendant’s website is not displayed within the search results but
separately (above the search results or besides) and, further, the users would
understand and know that the information provided in these areas are of
commercial character and do not demonstrate a certain relation to the trademark
protected keyword. While the German court denied the “use as a trademark”, the
U.S. Court confirmed the constitution of trademark use, but refused to grant the
claim due to missing likelihood of initial interest confusion. Particularly in cases,
where the information displayed in the advertisement contains the identity of the
advertising entity, the internet users would not be confused.
Comments:
3. Topic:
Facts:
With a slightly different argumentation Düsseldorf further denied a violation of the
Act against Unfair Competition. A misuse of the reputation of the trademark
protected keyword would require a transfer of the trademark’s reputation to the
defendant’s advertisement and its goods and services (so called transfer of
image). As the public could clearly see that the advertisement is not one of the
trademark owner, such an image transfer shall be out of question.
The author expects the jurisdiction and especially the Federal Court of Justice to
adapt its Metatags rules for keyword advertising as well. As with Metatags, the
Higher District Court of Düsseldorf’s opinion on keyword advertising will most
likely not prevail, as the aspect of canalising the internet users to its own website
by using third parties’ trademarks and similar rights is nothing but using third
parties’ trademarks for own business purposes; and this is exactly what the
European harmonised trademark law tries to prohibit. However, it might take its
time until a keyword advertising case has to be decided by the Federal Court of
Justice. Thus, until then trademark owners should sue keyword buyers before
other courts such as Cologne or Braunschweig, which are trademark owners’
friendlier in this respect.
Social Sponsoring
Recently Renate Kühnast, former Minister of Environment in Germany, made
No.1 news headlines by calling on consumers to buy Toyota´s new hybrid car to
contribute to the reduction of carbon dioxide emissions. Although heavily
criticized, Ms. Kühnast hit a nerve: in Germany´s saturated markets, appealing
on the environmental and social responsibility of consumers is increasingly en
vogue, often secondary to price and quality aspects. Examples are manifold.
Lidl, a well known discounter, entered into cooperation with a “fair trading
organization”, introducing “fairly traded” products to the mass market. Ikea
emphasizes that its products are manufactured without using child labour.
Businesses often advertise their sponsoring of schools, sports clubs, NGOs or
environmental organizations.
Strangely enough, the German saying “Tue Gutes und rede darüber” (do good
and talk about it) did not work well with German courts. German courts originally
banned advertising that appealed to the social conscience. A furniture retailer
was prohibited from advertising his commitment to give a whole day’s revenue to
his employees (Supreme Court – BGH, 29.11.1990, GRUR 1991, 545). The
manufacturer of sanitary products could not promote his sponsorship of a
German environmental organization (Higher Regional Court Cologne – OLG
Köln, 08.01.1993, WRP 1993, 346 ff.), and a producer of chocolate candy bars
was not allowed to present his cooperation with the WWF (Higher Regional
Court Stuttgart – OLG Stuttgart, 18.09.1998, WRP 1999, 456). Consequently, an
advertisement of a brewery, saying that with the purchase of each beer crate, 1
m² of the rain forests in Central Africa were effectively protected, was barred
(Higher Regional Court Hamm – OLG Hamm, 12.11.2002, GRUR 2003, 975). In
all of these cases, the courts held that there was no acceptable connection
between the social engagement and the advertised products. The advertising
was held objectionable due to an unfair moral and psychological impact.
However, reviewing the above decision of the court in Hamm, the Supreme
Court recently changed the jurisdiction on social sponsoring fundamentally. It set
up new evaluation guidelines (BGH, 26.10.2006, WRP 2007, 303; BGH,
26.10.2006, WRP 207, 308): The decision can be summarized up as follows:
- The Supreme Court referred to an earlier decision issued in 2005. In the
case “Artenschutz” (protection of species), the Court held that the
requirement of an objective connection between the advertised product
and the marketing claim was no longer valid. Thus, an optician was
allowed to refer to his support of an organisation for the protection of
endangered species in his advertisement campaign for sunglasses
(BGH, 22.09.2005, GRUR 2006, 75).
- This new position was broadened in the above mentioned “brewerycases”. The court held that even in those cases where a manufacturer
did not only advertise his social commitment for image purposes, as in
the case “Artenschutz”, but also connected the degree of his
commitment to the actual sales turnover (1 beer crate = 1 m² rain forest),
the consumers where not influenced in an unfair and illegal manner.
- The Supreme Court went even further. It additionally held that the
manufacturer did not have to inform the consumer in full how and to
what degree he was to commit itself. As long as the manufacturer did
not advertise a precise degree of sponsorship, it held the consumer only
expected a commitment that was significant enough to be mentioned.
Only if the consumer was misled in that respect, a connection between
social sponsoring and a sales promotion could be prohibited.
This decision was overdue. It resolves the uncertainties connected with social
sponsoring. The notion of undue influence on a costumer by appealing to his or
her social conscience is not in line with the European concept of an educated
consumer. Further clarification is necessary, though. The Supreme Court shifted
the line of argumentation to the question of deception, leaving open which
degree of social engagement is required to justify its use in advertising. It will be
the task of the lower courts (Instanzgerichte) to provide further guidelines.
4. Background Germany
Civil Law
Environment:
The German civil law system (as opposed to common law) is set forth in a
number of major codes (Civil Code, Commercial Code, Tax Code, Criminal
Code, Codes of Civil, Criminal and Administrative Procedures). Principal
statutory laws provide further rules for all private and commercial sectors
(including, for example, the Law Against Unfair Competition containing
principal advertising rules). In addition, there are a large number of regulations
Dispute
Resolution:
Procedures and
Costs:
Injunctive Relief:
Lawyers, Notaries:
and ordinances in each of these sectors of law (including, for example, Price
Declaration Regulations etc). Where statutory law contains “general clauses”
which are subject to interpretation (to a large extent found in the fair
competition and advertising sector), case law is providing supplementary
guidance.
The courts specialize in civil/commercial, criminal, public administration, labor,
social, tax and constitutional matters. Civil courts have special patent,
trademark, copyright and unfair competition benches. There are, in principle,
three review instances (second and third instance partly for review of law,
only), namely the entry courts (local or district courts), the appeal courts and
the several Federal Supreme Courts in civil and criminal, public administration,
labor, social and tax matters, plus the Federal Constitutional Court. Most
judges are in a life time civil service status. Arbitration and mediation provide
well developed supplementary dispute resolution options.
Under the Civil Procedure Code, a complaint must contain full statements of
facts and offers of evidence supporting these facts (documents, names of
witnesses, offer to rely on an expert opinion). There is no pre-trial discovery,
the court collects and considers evidence only in respect of facts in dispute
which contributes to quick and low cost dispute resolution. Officers and
Directors are considered “party” and do not qualify as witnesses. Regular
court proceedings take about 9 to 12 months in each instance. Litigation costs
are composed of statutory attorneys’ fees and court costs. Both are regulated
by statute, the amount depends on the value of the case (fees and costs are
determined on the basis of graduated fee schedules).The losing party pays all
costs and legal fees. Litigation is comparatively inexpensive if fees are based
on the statutory schedule. Lawyers may charge their clients (higher) fees
based on hourly rates if agreed in writing.
Injunctive relief is available in quick injunction procedures. A prior cease and
desist request is required unless such prior warning would jeopardize the
effects of an injunction or seizure. A case qualifies for injunctive relief only if
court assistance is urgent. If the plaintiff knows the relevant facts for more
than about one month they normally do not qualify (some courts accept
knowledge of up to six months). Ex parte injunctions (rendered without prior
oral hearing) are subject to “opposition” of the defendant in which case the
court will hear the case in an oral hearing. Injunctions rendered on the basis of
on oral hearing are subject to one appeal.
Although German lawyers have traditionally practised in relatively small
offices, and were instructed mainly for dispute resolution purposes, the past
15 years have seen a change towards legal planning and advisory services. I
addition to the majority of small practices, there are large groupings in
international and large independent national firms Notaries belong to a
separate legal profession, notarisation is required in certain corporate, real
property and matrimonial transactions where the notary assumes
responsibility for the legal effectiveness of the contract or transaction.
GUATEMALA
Marco Antonio Palacios
Cynthia Sequeira
Palacios & Asociados / Sercomi
mapalacios@sercomi.com.gt
csequeira@sercomi.com.gt
www.sercomi.com.gt
1. Legislation
Subject:
Country:
Who:
When:
Summary:
Publicity and Advertising in the Public Roadways of Guatemala
Guatemala
Municipality of Guatemala
2006
With the Decree number 34-2003 of the Congress of the Republic, all related
to Publicity and Advertising in the Public Roadways of Guatemala City were
regulated. This Decree recently entered into effect through the Municipality of
Guatemala.
The purpose of this Decree, is to regulate all kind of advertisements, label,
structure or billboard which promotes products, goods, or services.
The regulating body is the Municipality of Guatemala and advertising
companies must be registered before it. The taxes to be collected will
constitute private funds of the Municipality and will be used for the
maintenance of parks, ornamental purposes and for cleaning uses in its
jurisdiction.
It is important to mention that there is a limitation for foreign ads and/or
imported ads. The legislation establishes that the imported ads will be
charged with an additional 50% compared to the national ones, in order to
promote the national industry.
The Decree contains requirements which regulate the right of way, the respect
to human dignity, and the appropriate uses of loyalty in commerce. It also
forces to have readable identification of the advertising agency, manufacturer
and installer.
Comments:
2. Legislation
Subject:
Country:
Summary:
It’s important to highlight that such Decree, prohibits placing any ad of
products, goods or services that clearly can affect the health of the population
either physical or mental.
With this regulation, Guatemala improves and makes progress regarding
Advertising Matters, including the ultimate technology and regulates
appropriate uses.
Initiative Project of the amendments to the Guatemalan Health Code related to
Tobacco and Alcoholic Beverages’ advertisement
Guatemala
There is an initiative since 2005, trying to amend the actual regulation for
advertisement of alcoholic beverages and tobacco.
In such initiative, they are proposing the following:
a. Authorization prior to divulge any advertisement by the Health
Department will not be longer necessary for alcoholic beverages, It
will be mandatory only for tobacco.
b. Health warning to the consumer in the advertisement of alcoholic
beverages will be no longer necessary. It will be mandatory only for
tobacco.
c. Reduce the distance to place alcoholic beverages advertisement,
nearest educative and sports centers.
Comments:
The most important restriction to alcoholic beverages advertisement will be the
prohibition to show the direct consume of the product and the prohibition to
transmit the advertisement during children shows
If this initiative is approved by the Guatemalan Congress just the alcoholic
industry will be benefit, and the Tobacco Industry will be unprotected.
The consumers could be exposed to advertisement without any control
whatsoever.
GREECE
Kriton Metaxopoulos
Anastasia Kappou
Metaxopoulos Law Firm
k.metaxopoulos@metaxopouloslaw.gr
akappou@metaxopouloslaw.gr
www.metaxopouloslaw.gr
1. Case Report
Topic:
Who:
When:
Where:
What happened:
Is remuneration a decisive factor for an advertisement to be considered grey and
misleading and as a result illegal according to Greek law?
Claimant (data not provided) v. Decision of National Radiotelevision Council
Supreme Administrative Court of Athens 2006
Greece
Greek TV show hostess presented a magazine on air, during her show, receiving
no money for said presentation while at the same time not revealing that she
was actually the magazine’s editor as well.
The National Radio television Council imposed a penalty of 30.000 Euros
against which the hostess brought the present claim. The Supreme
Administrative Court of Athens ruled that although law 100/2000 (which
implemented the 97/36/EU Directive on TV advertising) makes specific reference
to the advertising occurring upon remuneration, the existence of said
remuneration is not required for the offense of grey and misleading advertising to
be committed.
Comments:
2. Legislation
Topic:
Who:
When:
Where:
What happened:
Comments:
The Court rejects the appeal.
This decision is one of the numerous decisions that make effective interpretation
and comprehensive enforcement of the law on TV advertisements which is so
commonly and frequently violated by Greek media despite the severe penalties
imposed.
Dictum on tobacco products brand sharing
Legal Council of the State
2006
Greece
It was questioned whether the brand sharing of tobacco products is permitted or
not in view of the 2003/33 EU Directive which prohibits all kinds of tobacco
advertisements in the press as well as in the radio. The Legal Council of the
State ruled for the brand sharing of tobacco products. More specifically the
advertisement using a tobacco product name, trademark, symbol for a non
tobacco product does not fall within the prohibition of the abovementioned
Directive.
Greece is one of the countries that provide limited protection in public health
issues such as the prohibition of smoking while numerous measures against
tobacco advertising have been enforced. However, the brand sharing of tobacco
products is generally an acceptable practice in Greece.
HUNGARY
Matias Vallejos Meana
Salló Ügyvédi Iroda – Salló Law Firm
hungarylex@mail.datanet.hu
www.decapoa.com
1. Title:
Topic:
Who:
When:
Where:
What Happened:
New restrictions applicable to direct marketing of tobacco products
Data Protections and Tobacco advertising
Data Protection Commissioner
February 2007
Budapest
The Data Protection Commissioner examined if in the course of point- earning
promotions and other direct marketing activities (in this case organized by Shell
Hungary Kft.), it is allowed to collect information regarding smoking habits of
consumers and afterwards, send them tobacco advertising (in this case of BAT
Pécsi Dohánygyár Rt.). In this case Shell credited 50 points to the customers
who consented to receive tobacco advertising materials.
Since Hungarian business advertising regulations forbid direct or indirect
advertising of tobacco products, the Data Protection Commissioner requested
the opinion of the Competition Office on the application of the prohibition to the
above mentioned activities.
The Competition Office confirmed that the above mentioned activities are a
business advertising activity.
Based on, and agreeing with such opinion, the Data Protection Commissioner
decided that – without consideration of the fact that the persons have given their
express consent - it is forbidden to collect personal data in promotions or use
personal data previously collected, in order to send information or advertising of
tobacco products or promoting smoking.
2. Title:
Topic:
Who:
When:
Where:
What Happened:
End to the sponsorship of tobacco products
Tobacco products
Hungarian Parliament
7 December 2006
Budapest
In December last year, the Hungarian Parliament passed Act CV of 2006
modifying the dispositions of the Act on Business Advertising Activities (Act LVIII
of 1997).
The amendment expressly extends the scope of application of the Act on
Business Advertisement to sponsorship activities. It is necessary to remark that
in Hungary it has always been considered that sponsorship is a business
advertising activity, but the European Commission had doubts about it; more
specifically, the European Commission was concerned that the general
prohibition on the advertisement of tobacco products could not include
sponsorship activities.
In order to satisfy the European Commission, according to the text introduced,
sponsorship activities are defined as contributions to any event or activity given
to any person – in connection with the event or activity – with the aim of or the
direct or indirect effect of promoting a tobacco product.
The new text forbids the sponsorship of tobacco products in connection with
events or activities that involve or take place in several members of the
European Economic Area or that have cross-border effects.
Comment:
3. Title:
Topic:
Who:
When:
Where:
What Happened:
Putting an end to the dispute between the European Commission and the
Government of Hungary, the new act eliminates the disposition that authorized
the Ministry of Economics to grant derogations to the general prohibition for a
determined period of time with regards to events particularly relevant to the
national economy (Formula 1 competition).
With the new regulations passed, the Hungarian Parliament fully implements the
dispositions of directive 2003/33/EC, putting an end to the disputes and
proceeding initiated by the European Commission against Hungary.
Inaccurate advertising
Misleading advertising
Competition Office
November 2006
Budapest
ING Pénztárszolgáltató és Tanácsadó Zrt. published on the main page of its
website (www.ing.hu) the rates of benefits obtained to its customers by ING
Pension schemes.
The Competition Office found that the rates of benefits published on the main
page of the web site between 15th March and 30th May 2006 were not the
present benefit rates, but the rates reached in 2004.
The benefits obtained by ING Pension funds were 19,12% and 19,98% in 2004
while in 2005 the benefits were 10,81% and 11,89%.
When the proceedings were initiated, ING immediately eliminated the questioned
advertising.
Although clicking on the icon of the main page the full information was available,
the Competition Office concluded that the conduct of ING was misleading to
consumers, but decided not to impose a fine considering that the infringement
was committed only on the web page and that the decision of the Competition
Office establishing the infringement should be enough to prevent ING from
breaking the regulations in the future.
4. Title:
Topic:
Who:
When:
Where:
What Happened:
Promotions without stock of products
Misleading advertising
Competition Office
October 2006
Budapest
Rossmann Magyar Kereskedelmi Kft published a promotion in a newspaper
(distributed to consumers), valid from 27th March 2006 till 2nd April 2006, with the
following wording “Fun water drops edt 30 ml 75% discount 999.-Ft instead of
41490.- Ft”.
A consumer complained that the first day of the offer, in the morning, the
promoted product was not available.
The Competition Office found that on the first day of the promotion, the shop had
4 units of the product promoted, which were sold by midday.
Rossmann argued that in 2006, before and after the time of the offers, it had not
sold a single unit of the product and that it had a stock enough to satisfy the
habitual weekly demand.
According to the position of the Competition Office, the basic issue is that in this
case, if consumers go to the shop to buy the promoted product and do not find it
but instead buy other products, then the promotion infringes Hungarian
regulations.
Rossmann had an unrealistic low stock of products at the start of the offer and
the type of products involved (low price product, easily exchangeable product)
and the wide offer of products that can be found at Rossmann, make it more
probable that if a consumer goes to the shop attracted by the offer, does not find
the promoted product and buys other products that he finds in the shop.
The Competition Office concluded that the conduct of Rossmann was misleading
to consumers and imposed a fine of 1.000.000.- HUF.
INDIA
Sharad Vadehra
Kan & Krishme
patents@ndf.vsnl.net.in
www.kankrishme.com
1. Topic:
Who:
When:
Where:
What Happened:
Cable Act - Content code for blocking the offending channels.
Ministry of Information & Broadcasting
Published on April 1, 2007
India
The I & B Ministry has adopted separate content code with respect to personal
biases, likely disallowing what denigrates woman or what affects public morality
or permitting only what is in good taste and morality.
This content code is expected to spell out what is allowed and what is not much
more clearly.
Consequently first the channel AXN is banned and yanked off the air.
After facing the AXE by AXN now the government imposed a two month ban on
fashion channel FTV for telecasting obscene programming and also issued a
show cause notice that why action should not be taken against them for violating
the programming Code.
The ban on FTV was issued over channels telecast of a program called ‘midnight
hot’. Which according to I & B Ministry featured skimpily dressed and semi naked
Models that was against good taste and decency and denigrates women and is
likely to adverse effect public morality.
After banning the FTV fashion channel the I & B Ministry issued notice to
business channel CNBC Awaaz for showing Liquor advertisements. The Ministry
is seriously contemplating action against the channels CNBC Awaaz.
The channels CNBC Awaaz screened advertisement featuring Martiac Whisky
and satu Pertus wine.
The decision on the ban was taken after the Inter Ministerial committee and the I
& B Ministry appears to take stringent action on those advertisements which
promotes production directly or indirectly, sale, consumption of cigarette,
tobacco products, alcohol and other intoxicant.
2. Topic:
Who:
When:
Where:
What Happened:
New code to restrict ads targeted at children
Advertising Standard Council of India
Due to take place
India
The Advertising and Standard Council of India (ASCI) will now act on special
responsibility to protect Children from their own vulnerability with respect to
advertisement of food and beverages under new code in conformation with
global codes CIAA.
The code is expected to insist that manufactures do not make misleading claims
about the nutritional value of the product they sell.
The CIAA code for instance states explicitly that public health is the responsibility
of all stakeholders. The food and beverage industry is committed in playing its
part with respect to choice of diets by the consumer which can positively impact
their health and well being.
ASCI believes that once its code is in place consumer will not face irresponsible
food or beverage advertisements on nutritional content in food without being
backed by Scientific data.
3. Topic:
Who:
Where:
What Happened:
Pull out of advertisement campaign by Pepsi (Blue Billion Campaign)
Pepsico India
India
Pepsico India the largest soft drink manufacturer under the brand Pepsi Cola
was betting big on Indian Cricketers for winning the Cricket World cup and spent
350 crores on Blue Billion campaign contracting them for advertising campaign
of its product Pepsi Cola on TV Channels. However due to ouster of the Indian
team from the world cup, it has pulled out of the 350/- crore Blue Billion
campaign.
The advertisement from different TV Channels have been immediately yanked
off air and now no any cricketer will feature in Pepsi cola advertisement on TV
Channels.
Many of Pepsi’s most loved campaign like ‘Nothing Official About it’ ‘Men in blue’
‘oooh Aaah India’, ‘Aaah yaa India’ and ‘Blue Billion’ have all centered around
cricket. According to its officers cricket has been a great medium to sell then
brand and they have lunched many stunners on the back of cricket.
IRELAND
Duncan Grehan
Conor Griffin
Duncan Grehan & Partners Solicitors
dgrehan@duncangrehan.com
cgriffin@duncangrehan.com
www.duncangrehan.com
1. Legislation:
Topic:
Who:
When:
What happened:
Comment:
2. Topic:
Who:
When:
Where:
What happened:
Comment:
Consumer Protection Bill, 2007
Prohibition on Misleading or Fraudulent Practices
Department of Enterprise, Trade & Employment, the Director of Consumer
Affairs
February 2007
The first draft of the new Consumer Protection (National Consumer Agency) Bill
has been published. When brought into force the Act will establish a new
National Consumer Agency which will be funded by the Government to act on
behalf of consumers. This will replace the Office of the Director of Consumer
Affairs. The Act will also prohibit a number of practices such as pyramid selling,
prize draw scams, making false or misleading claims about products and
persistent cold calling of consumers. In total the Act will list 31 practices which
will be forbidden in all circumstances. Persons acting in breach of the new laws
will face fines of up to €150,000 and/or up to 5 years imprisonment depending on
the offence.
The Act will also implement the EU Unfair Commercial Practices Directive and is
due to be in force by June 2007. The legislation will also give the NCA the
power to advise the Government on legislation that impacts on consumers and
will interact with other regulatory bodies to promote the interests of consumers.
This could lead to further strengthening of consumer protection regulations in
Ireland.
New ASAI Code
Advertising Standards Authority of Ireland
January 2007
Ireland
The Advertising Standards Authority of Ireland has revised it’s Codes on
Advertising and Sales Promotions. Instead of two separate Codes it has now
published just one Code which combines advertising and sales promotions. The
code has been updated to take into account new median’s of advertising and to
this end a new definition “marketing communication” which as defined by the
ASAI “includes but is not limited to advertising, as well as other techniques such
as promotions, sponsorships and direct marketing, and should be interpreted
broadly to mean any form of communication produced directly by or on behalf of
advertisers intended primarily to promote products, to influence the behaviour of
and/or to inform those to whom it is addressed”. E-mails and text transmissions
are now specifically included within the scope of the Code. There is also a
greater emphasis on the way that new electronic media should be used for
advertising and marketing. Sections dealing with "distance selling marketing"
have also been expanded to deal with the issues the ASAI perceives in this area.
In addition the ASAI may sanction advertisers who repeatedly breach provisions
to submit all marketing communications to the ASAI Clearance Department in
advance of publication so that all copy is cleared by the ASAI in advance.
The ASAI Code though self regulatory is followed by the vast majority of
advertisers in Ireland and the changes to the Code reflect the changing trends in
advertising away from the traditional broadcast and print media.
3. Topic:
Who:
When:
Where:
What happened:
Comment:
4. Topic:
Who:
When:
Where:
What happened:
Comment:
5. Topic:
When:
Where:
What happened:
Sales Promotion
Advertising Standards Authority of Ireland
November 2006
Ireland
The ASAI Secretariat noted an on-pack promotion for Felix cat food on products
that were on sale in Ireland. The promotion was actually only open to residents
of the UK, Channel Islands and the Isle of Man and not to Irish residents. The
advertisers admitted that due to an error in their supply chain the products with
the on-pack promotion had ended up on sale in Ireland. Their intention was to
sell standard packs with no promotion in Ireland. However on further
investigation the Secretariat noticed that the packs were still on sale two months
after the start of the promotion. The complaint was upheld as the ASAI Code
states that the presentation of promotions should not mislead consumers.
We are often asked to provide advices on such promotions and generally we are
obliged to point out that the promotion must specifically apply to Ireland if the
products are sold here. The decision above indicates that the ASAI do in fact
monitor such promotions and advertisers should remain vigilant.
Comparative Advertising
Advertising Standards Authority of Ireland
November 2006
Ireland
The ASAI was asked to make a decision on a comparative advertising campaign
by “Finish” dishwasher tablets following an intra-industry complaint by Sun who
produce a similar product. The advertisement compared the cleaning results of
Finish 5 in 1 to the best selling competitor and claimed to have superior cleaning
performance. The complainant considered this misleading as independent
results showed that Sun 5 in 1 which was the best selling competitor had results
equal to Finish 5 in 1. The complaint was upheld. The advertisers had already
removed the advertisement from air however the Code required that
advertisements must be fair and designed not to mislead the consumer. A claim
that any product is superior to others should only be made where there is clear
evidence to support that claim.
Following on from our points in relation to sales promotions at No. 3 above we
are also often obliged to point out to clients that any claims should be capable of
being substantiated. The risk always remains that a competitor will ask to see
independent evidence of any claims and in the absence of that evidence
supporting the claim then the advertisement will be in in breach of the Code.
Tobacco Advertising
January 2007
High Court, Ireland
Over the past number of years we have kept you updated in our country reports
on the Governments attempt to implement the Public Health (Tobacco) Act,
2002. Now a decision by several tobacco companies and others to abandon a
lengthy legal challenge over the Act has cleared the way for a full introduction of
the act including an outright ban on point of sale tobacco advertising. The High
Court challenge had sought to prevent full implementation of the act on the
grounds that it was unconstitutional, in breach of EU law and the European
Convention on Human Rights, and would involve significant financial losses for
them if they came into effect. However days before the challenge was due to be
heard in the Irish High Court the tobacco companies indicated to the High court
that they were withdrawing their challenge
Comment:
This has now cleared the way for an outright ban on any point of sale advertising
with the ultimate objective being “under the counter” tobacco sales only. At
present most tobacco products are sold with prominent displays behind the
counter.
6. Topic:
Who:
When:
Where:
What happened:
Copyright Law
Record Companies, Internet Service Providers
August 2006
Commercial Court, Ireland
The Commercial Court was established in Ireland in 2004 however in 2006 it
dealt with 2 cases where record companies sought details of internet subscribers
from the internet service providers so that they could bring copyright
infringement proceedings against them for uploading music illegally. There was
no suggestion of any wrongdoing on the part of the internet service providers.
The actions of those uploading music was described by the Judge as
“tantamount to stealing” and he ordered the internet service providers to hand
over the details of the subscribers in question.
The Judge did agree that there is a certain right to privacy for internet
subscribers but where there was evidence of wrongdoing on their part then that
right should give way. However the record companies were required to
undertake not to disclose the names of the wrongdoers except as part of legal
proceedings.
Comment:
ISRAEL
David Wolberg
Kuperschmit & Goldstein & Co.
dwolberg@kgcolaw.com
www.kgcolaw.com
1. Case Report
Topic:
Who:
When:
What Happened:
On-Line Gambling
Interlogic - “Play 65”/The State Attorney and Israel Police
December 2006
The Israel Penal Law-1977, generally, subject to a few qualifications, prohibits
“unauthorized games”, “lotteries” and “gambling”.
An unauthorized game is defined as a “game in which one may win money, its
equivalent or a benefit due to the results of a game, and the results are more
dependent on luck than on understanding or capability”. Gambling is
defined as “any arrangement whereby one can win money, its equivalent or a
benefit, and the winning is dependant on guessing, inclusive of a lottery
connected to the results of games and sporting events”.
Nevertheless, the company “Interlogic” operated on-line backgammon games on
a website titled “Play 65”, in which players could win or loose money.
On December 13, 2006, the Police cautioned Interlogic to cease all money
related online backgammon games, as there is an element of luck involved. The
police made it clear that the State Attorney regards online gambling as a criminal
offence.
The Police and the State Attorney cautioned additional gambling website
operators and also warned credit card companies to cease all credit activities in
favor of on-line gamblers.
2. Case Report
Topic:
Where:
Who:
When:
What Happened:
Defamatory and Misleading Advertisement
Tel Aviv District Court
Association of Insurance Agents et al (“Plaintiff”) Vs. I D I Direct Insurance
Company Ltd. (“Defendant”)
August 2006
The Defendant offers insurance services directly to the public without the use of
insurance agents. The following Defendant’s advertisement was broadcasted on
radio:
An announcer and Insurance Agent simultaneously state the following:
Announcer:
“You are joining us now after six hours of listening to an Insurance Agent feeding
a confused customer with endless data. There are media crews from all around
the world and they also do not understand the Agent’s damned language”.
In the background, the Insurance Agent says the following:
“Take the former amount you paid for your vehicle insurance, multiply it by
twelve months linked to the US Dollar and/or the Japanese Yen, divide it by six
payments plus one and a half percent only, minimize the risk and deduct fees
and a non claim discount in accordance to the economy’s next ten year growth
prediction.”
The Announcer:
“Are you confused? Simply call 9,000,000 (the name and phone number of the
insurance company) and receive a simple, low and worthwhile price offer for car
insurance”.
The Plaintiff, inter alia, claiming the radio advertisement was untruthful,
defamatory and misleading, requested an interim injunction against the
Defendant.
Taking into account the tone and wording of the advertisement, the District Court
concluded that the ad was a humoristic satire.
The voice of the Insurance Agent is lower in volume and is merely heard in the
background. Thus, his wording may be given only limited weight.
The Defendant merely conveyed that direct insurance is cheaper and simpler.
Due the manner in which the wording was conveyed, no reasonable listener will
infer negative facts relating to Insurance Agents.
Comments:
The court therefore ruled against an interim injunction.
Many advertisements which would usually be held illegal, when presented in a
humoristic manner, may be accepted by the courts and the relevant regulatory
bodies.
ITALY
Felix Hofer
Hofer Lösch Torricelli
fhofer@hltlaw.it
www.hltlaw.it
1. Industry Self Regulation
Topic:
Who:
When:
Where:
What Happened:
Food Advertising
Institute for Advertising Self-Regulation - IAP
January 2007
Italy
As almost everywhere so in Italy, during the last year obesity and nutritional
disorder resulted in an issue of major concern and were therefore at the center
point of animated discussions involving legislators, watchdogs, dietitians,
parents' associations and large industry sectors.
Given these premises, it's hardly a surprise that the IAP delivered its first
decision in 2007 on a food advertising campaign, performed both, in TV, as
well as, in magazines.
The case involved ads of a major local food company meant to promote a new
line of corn flakes. The ads were questioned by a competitor who objected
against a number of slogans referring – with various associations - to the new
product line as the “true corn flakes” or as “the flakes with unique tastiness”.
The competitor approached the local Advertising Self-Regulation system
claiming specifically that the questioned campaign resulted misleading to
consumers as it contained incorrect indications as to the promoted products
components (“low in sodium, naturally rich of fiber and mineral salt“) and
suggested the product having peculiar characteristics (“a unique section of
integral cereals“), while those were actually common to all corn flakes
distributed on the local market.
The defendant argued that the adjective “true” hadn't been referred directly to
the promoted product, but was actually meant to generically high lighten
cereal's qualities, while the adjective “unique” resulted in a simple hyperbolic
claim. Finally, even if the requirements set by the European Breakfast Cereal
Association's guide-lines on “low-in-sodium” claims hadn't been fulfilled, this
wasn't relevant as those guide-lines would become effective only in July 2007.
The Jury of the Institute for Advertising Self-Regulation held the campaign as
partially incorrect and stated that:
− “unique tastiness” was a typical advertising slogan, used for magnifying a
product's qualities in an exaggerated way, easily perceivable by the
average consumer and as such not likely to cause misleading effects,
− improper claims on “low-in-sodium” were not acceptable, even more as
both companies, the claimant as well as the defendant, were members to
the European Breakfast Cereal Association and therefore had to be
clearly aware of the importance of such statements being true and exact,
− reference to “integral cereals” had fallen afoul of adequate substantiation
and therefore had to be considered as misleading to the general public,
− the misleading claims being present primarily on the product's packaging
and involving this circumstance obvious problems for compliance with the
Jury's desist order, enforcement had to be performed within a deadline of
three months (from the moment of the decision).
2. Ethic Code - Self Regulation
Topic:
Who:
When:
Where:
What Happened:
Beauty model – Beauty Treatment
Government – Industry – Advertising Self-Regulation
December 2006
Italy
(i) After an Uruguayan fashion model passed away of heart failure in summer
2006 and a 21 year old Brazilian model had to surrender to complications
derived from anorexia, the Italian Government – following similar efforts
performed in Spain and Argentina – decided to have a closer look at the
presence of ultra-thin teenagers on the catwalk and to fight the lifestyle
standard currently delivered by the fashion industry.
Both the Youth Minister as well as the Secretary of the Department for Public
Health (the Departments are currently headed by female Ministers) urged the
Italian National Fashion Chamber (which gathers all the Italian main fashion
maisons) to show a higher level of responsibility, to exercise stricter control on
what was going on in the catwalk business and to deserve more attention to
the health conditions of those modeling at fashion events. In addition the two
Ministers called for involvement of modeling agencies, photographers and all
other professionals and practitioners active in the peculiar industry sector.
For the moment the Government is seeking to establish a voluntary Charter to
be adopted by all those operating in the fashion industry: in the Ministers' view
it doesn't appear strictly necessary to immediately come up with specific limits
on body mass index. The voluntary Charter should aim at delivering to the
general public (and especially to young people) a less ultra-slim-look focused
standard image of those performing on the catwalk. Professional Bodies and
Trade Associations should also be able to require models to undergo
periodical medical checks on their health conditions and to prevent them from
appearing in fashion events, if they refuse to undergo such check. Finally
models aged sixteen and under shouldn't be allowed to perform on the
catwalk.
A Manifesto with detailed guidelines was announced to be presented at the
Women's Fashion Week (scheduled in Milan in February 2007).
(ii) More or less in the same period the Italian Advertising Self-Regulation
Institute (IAP) dealt with one of the many campaigns meant to promote beauty
products and treatments.
In the specific case a press campaign was run under the headline “Cellulite:
Fight it with an invisible weapon!” in order to promote a plaster. The ads
promised that the plaster's use would:
- reduce cellulite's unaesthetic effects in 7 days,
- grant lipo-reducing and draining effects on a non-stop 24 hours basis.
The ad was questioned ex officio by the IAP's Review Board, which asked for
claim substantiation.
While the advertiser spontaneously abandoned the promise of visible effects
in seven days, he resisted on the other objections, affirming that all other
claims were grounded and backed by test results and scientific research. He
objected to a temporary desist order and therefore the case was brought in
front of the Advertising Self-Regulation dispute resolution system.
The advertiser argued that:
the promoted product was released through a transdermic plaster, a
device normally used by the pharmaceutical industry for component
−
−
−
−
−
release and timing control,
the product actually contained cosmetic components apt to stimulate
metabolism,
the transdermic plaster resulted in a release control system, able to
distribute components' release over a 24 hours period,
the product's efficacy was properly supported by specific test results and
by research performed by a team of scientists of a local University,
therefore all claims (save the one spontaneously abandoned) had to be
considered as correct and adequately substantiated.
The Review Board insisted in objecting that:
- the test results didn't appear reliable as they involved only a group of 20
people, aged between 18 and 70 (a range that the Review Board felt too
broad for offering significant information on the product's efficacy),
- absolutely no substantiation had been provided as to the product's claimed
lipo-reducing and draining effects, as most of the test results referred rather to
the transdermic plaster's functioning than to the effects achievable through the
product's use.
The Jury considered the two opposite positions and held that:
the product was not advertised as having slimming effects, but only as
reducing cellulite,
− the tests performed had shown that the product's use had led to an – at
least – aesthetic result (in 30 days legs' circumference had diminished by
1 or 1,5 centimeters),
− all advertising claims resulted actually so poor that promising less would
have been almost impossible,
− therefore the ad was unlikely to mislead consumers on the product's
characteristics and effects.
−
The Review Board's complaint was therefore dismissed.
3. Legislation
Topic:
When:
Where:
What Happened:
Advertising targeted to Children
Fall 2006 – Spring 2007
Germany, Greece, Italy, United Kingdom, United States
In a December 2006 news blurb we've reported about how advertising, both,
specifically targeted to children as well as commercial communication able to
reach a public of minors, has more and more shifted into the focus of
legislators and watchdogs in many countries throughout the world.
While in the US the Mobile Marketing Association (MMA) released stricter
industry guidelines, specifically directed to wireless carriers, aggregators and
content providers and meant to increase protection of children in marketing
practices, on the other side of the Ocean UK regulator Ofcom hit the
marketing industry with the decision to end junk-food advertising to all children
under 16.
In Fall 2006 in Germany a student performed a wild shooting at a high school,
killing several pupils and then committing suicide. The fact had an extremely
shocking impact on the general public, assumptions were made – by experts
as well as by journalists – as to a potential connection between the young
killer's behavior and excessive promotion of video games featuring improper
and violent content. Furthermore, calls for tougher control and for more
restrictive regulations as to promoting such videos and video games were
brought to the attention of lawmakers.
Almost at the same time the Greek Ministry for Education established a ban
for teachers and pupils as to mobile phones' use at school. The restriction is
not limited to using the phones, but also covers (for students) the carrying
them onto school premises (exceptions are allowed only in few and specific
cases, but even then the phones will have to be switched off and to be kept
inside bags). Non-compliance implies parents' notification for primary school
students, but could result in expulsion from school for secondary school pupils
in case of repeated violations. Teachers are required to switch off their phones
and will undergo disciplinary sanctions in case of non-compliance.
In parallel to those national initiatives the European Union's key institutions
(the Parliament, the Council and the Commission) were performing their final
evaluation of the multi annual “Safer Internet Action Plan” (SIAP, launched in
1999). This action plan indicates the main objectives to pursue in order to
prevent minors from uncontrolled access to harmful and dangerous content on
the Internet. Therefore the EU will now focus on the concrete steps to be
taken for achieving the plan's objectives.
We also reported that in Italy the issue had also become a topic of intense
debate in the general public and that first reactions from the Regulators had
occurred.
On November 15, 2006 the local Communications Regulatory Authority
(Agcom) required communication providers offering audiovisual and
multimedia services, which are made available through mobile devices, to
include in their service offers technical means apt to prevent minors from
accessing harmful content. Services with content apt for an adult only public
must provide a specific control mode, allowing parents to block access on a
constant basis (the mechanism has to be activated/disabled through a PIN
code system (where the code must be handed out through reserved delivery,
together with specific instructions as to proper use and users' responsibility).
Providers are also invited to grant widespread notice about the parental
control system and its technical means, while users must confirm in writing to
have received the respective alerts. Non-compliance will be punished by the
Authority through fines or by temporary suspension from business.
A few days later (on November 29, 2006) the same Authority issued additional
provisions, meant to grant protection of minors in the context of entertainment
programs. Those provisions require TV and Radio broadcasters (public as well
as private) and providers of similar content to properly consider that among
the audience minors of age may watch the programs aired. Therefore content
has to comply with general requirements as correct language and proper
behavior from participants to the programs: unjustified – physical or verbal violence, vulgarity, bad language, sexual innuendo are to be avoided in
programs likely to be accessed by an audience of minors.
More or less at the same time (November 2006) the National Journalists'
Association released a revisited version of its deonthological rules (the socalled Carta di Treviso), which contains a specific Section (no. 7) dedicated to
protection of minors and states that journalists should restrain from publishing
minors' personal data and from rendering them identifiable (a few exception
are allowed). Those rules have also been approved by the local Privacy
Commissioner as an ethical self-regulatory code.
The premise to the updated version of those ethical rules sets, as a new – and
quite impacting – provision, the principle that the revisited guidelines apply
also to on-line and multimedia journalism and to any kind of journalistic
communication, which implies that bloggers will also have to take into due
account the Carta's prescriptions.
We then predicted that more regulation in this area appeared not only most
likely, but almost certain.
No long wait was necessary for seeing further action from local regulators.
On March 16, 2007 the Minister for Public Education, while calling for a
specific new law, issued guide-lines in order to favour correct use of mobile
phones at school.
According to those guide-lines use by pupils of electronic devices at school
will be banned and teachers will be allowed to seize such devices in class until
the end of the lessons. School principals are called to adapt existing internal
regulations to the new guide-lines.
Comment:
4. Ethic Code:
Topic:
Who:
When:
Where:
What Happened:
In addition the Minister also decided to address the increasing phenomenon of
bullying at school. Pupils bullying fellow students will face tougher sanctions,
which can result in suspension from school for even over 15 days, in
compulsory assignment to social work (as cleaning up school premises,
assisting handicapped people, etc.) and – in cases of repeated infringement –
in ban from accessing school leaving examinations. Parents will be involved in
enforcement through signing – when enrolling their children – a special form
where they accept liability for damages caused by and payment of fines
applied on their kids.
So, what's next in the line? Tougher rules on alcohol advertising, see the
comments below in point no. 4.
Alcoholics and Minors: “Saturday Night Deaths” (i.e. Young people
involved in car accidents while driving home from disco parties)
Ministry for Home Affairs in coordination with the Ministry for Young
People and Sports – Entertainment Industry
March 2007
Italy
On March 16, 2007 the Italian Government took additional steps aimed at
preventing the increasing number of car accidents occurring on Saturday
nights and involving young people driving home from discos or other
entertainment places.
While a specific bill is under way meant to tighten sanctions for those caught
while driving after excessive alcohol consumption, the Ministers for Home
Affairs and for Young People and Sports have addressed the problem in
cooperation with the trade associations of producers of alcoholic beverages
and of the entertainment premises' owners by signing an new Ethic Code.
Key points of this Ethic Code are the following:
− a group of young people intending to spend the night out and to visit a
disco, a bar or a pub indicate one member as the “designated driver”,
− this persons accepts to restrain from drinking alcoholic beverages and to
take care of the driving during the whole evening,
− the “designated driver” gets free entrance or a reduction on the fee
collected for accessing entertaining premises and, while he may not be
served with alcoholic beverage, he may receive rebates on non-alcoholic
drinks,
− in addition, owners of entertaining premises commit to not encouraging
consumption of alcoholics through below-the-cost offers or by selling them
at a price lower than that of non-alcoholic beverages,
− managers and staff of entertainment premises: (a) will encourage people
to undergo a quick alcohol test when leaving, (b) will invite them not to
drive, if found with an excessive level of alcohol, and (c) will increase
control in order to grant strict compliance with the existing ban on sales of
alcoholics to minors of age.
Comment:
5. Administrative
Control
Topic:
Who:
When:
Where:
What Happened:
Finally, all interested stakeholders commit to running educational programs in
order to favour responsible drinking and to high lighten the risk of excessive
consumption of alcoholics on driving ability.
The Government tries here to address a specific aspect of an enormous
problem: 5.000 victims, 20.000 seriously disabled, almost 300.000 injured per
annum; most of the people involved in car accidents are aged between 15 and
29 years.
Privacy: e-mail use and Internet access on employee's working place
Italian Privacy Watchdog (i.e. Special Authority for Protection of
Personal Data)
March 2007
Italy
Employers peeping into employees' e-mail and Internet surfs at their job
desks, firing for improper use of on-line accesses at work, a scenario we've
become familiar with in recent years.
But it didn't take long before such control practices gave rise to concern about
undue violations of employees' privacy sphere.
With the Unions addressing the problem and labour courts getting more and
more involved, the local Privacy Watchdog felt is was time for issuing specific
guide-lines on the topic.
According to those guide-lines:
− Private and Public employers may not control their employees' e-mail and
Internet use as a standard practice (e.g. employees' constant distance
monitoring), but only exceptionally,
− Modalities of such control may be determined by the employer, but taking
into due account employees' rights as well as principles fixed by union
agreements (Unions' involvement in the process is recommended),
− Employers are required to adequately and explicitly inform employees on
how e-mail and Internet access at the working place should be properly
used and about both, the fact that control will be performed as well the
technical means to be used to this purpose,
− Systematic monitoring of websites accessed by employees is not allowed,
content control on e-mails and web pages' analysis may be performed
only in very limited (and predetermined) cases,
− A corporate policy should be agreed with the Unions on how and when to
perform such exceptional control,
− Proper safety measures for avoiding improper uses of email or Internet
access have to be put into place in order to limit as much as possible
follow up controls on employees,
− Those measures should include:
− a preventive list indicating websites contextual to employees' working
performances,
− filters able preventing access to website included in a specific 'black
list' or to pirate URLs (renown for illicit downloads of music or multimedia files,
− providing employees with eventual separate e-mail accounts for
personal/private correspondence or with specific indications,
explaining clearly that the e-mail used is a working address (e.g.
info@...., ...@office ..., ....@company.....),
−
−
−
−
6. Administrative
Control
Topic:
Who:
When:
Where:
What Happened:
arranging for automated reply in case of employees' absence,
inviting employees to designate a specific person, authorized to
access their e-mail accounts in case of their absence and to forward
to a manager messages inherent to work, urgent or requiring
immediate reaction,
In cases of discovery of improper conduct employer's control should
proceed gradually, i.e. should focus on a department, an office, a team
and should initially lead to a first warning issued to the respective
corporate group, while individual control should be performed only if such
measure results not successful,
Peculiar measures should apply to employees held to perform special
duties in their labour relationship (e.g. confidentiality requirements, etc.).
Privacy, VIPs and High Society news – The Paparazzi Gate
Italian Privacy Watchdog (i.e. Special Authority for Protection of
Personal Data)
March 2007
Italy
Some months ago local criminal prosecutors started an enquiry about the
businesses of a group of persons active in the local show and entertainment
business: the enquiry involved a photographer specialized in taking pictures of
famous persons (in somehow embarrassing circumstances), agents and
promoters of actresses, TV starlets and models.
The group apparently targeted sportsmen, politicians and other famous
persons by offering them either female company during lonely evenings or
purchase of pictures showing the persons in situations they'd rather prefer not
to become of public domain.
When details of the criminal investigation (and of the interviews of the involved
persons with the prosecutors) leaked to the gutter press and spicy news
became accessible to the general public almost on a daily basis, the local
Privacy Commissioner felt that this had little do to with freedom of press and
resulted actually in a conduct unduly invasive into a person's private sphere as
well as in infringement of the provisions on personal data (as press gossip
diffused indications about sexual habits).
Comment:
The Privacy Commissioner, while recalling that guide-lines for journalists had
already been set in June 2006, considered that further action was required
and therefore delivered additional indications, according to which press is not
allowed to diffuse personal data referring:
− to private facts or conducts not relevant under the perspective of
public interest, or
− to details or circumstances exceeding the context of information
essential to the general public, or
− to peculiar aspects of a person's private sphere, such as sexual
habits.
The Commissioner also reminded the press that non compliance would result
in a criminal offence, punished with imprisonment from three months up to two
years and would imply damage compensation.
While the Commissioner's prompt concern about protection of VIPs' private
sphere is commendable (provided that equally strong action is taken when
ordinary people's privacy is at stake), we all wonder what we're going to read
when visiting our hairdresser's or barber's shop.
7. Industry Self Regulation
Topic:
Who:
When:
Where:
What Happened:
Advertising as much as possible at the edge
Institute for Advertising Self-Regulation
Periodically
Italy
A local company producing men's apparel seems to be convinced that nothing
sells better than an edgy ad campaign. Apparently it also feels that some
clinch with the industry advertising self-regulation system is all but harmful to
the purpose of promoting its products.
The company therefore easily succeeded in getting serviced (in September
2005) with a – hardly not expected - cease injunction from IAP's Review Board
for the ads shown below, which were considered as vulgar and offensive as
well as not compliant with the standards of good and fair advertising practices.
In addition, the Board considered that the campaign, being performed through
outdoor ads, was likely to cause moral harm to a public of minors.
Aside from the IAP's intervention a local AG also decided to give the campaign
some attention and started an enquiry in order to evaluate whether a criminal
offence had occurred.
The sector press widely reported about the case and Mr. Oliviero Toscani,
author of the campaign's photo shots (and not new to provocative campaigns
since his time with Benetton) complained about undue censorship.
More or less one year later the company performed a different campaign
through the following outdoor ads, which is certainly less “touchy”, but still
contains some “genital” reference.
Unfortunately the IAP's Review Board didn't like this one either and brought
the campaign before Jury. In the Board's view the campaign infringed the
advertising self-regulation code's provisions as:
− it presented a highly disorienting and contradictory situation by opposing
two dressed adults to a totally naked child,
− the child's nudity appeared completely out of context and lacked of
product relevance,
− it delivered a highly misguiding message by suggesting a naked child
together with two adults as a normal situation and as a common childadult relationship.
The advertiser questioned the Jury's power to rule on the campaign by arguing
that he hadn't signed any contract or clause implying adherence to the selfregulation system.
The Jury subsequently issued its decision only towards the agency in charge
of the campaign's handling and stated that:
− instrumental use of nudity had to be found, as the naked child's function
was exclusively that of hitting the general public's attention,
−
transforming a little child and its nudity into a mere object and into a call
for attracting focus on adults' cloth resulted offensive to human dignity and
wasn't in line with the good practices of fair advertising,
− including ambiguous situations in campaigns infringed on the basic
principle that all advertising had to be honest and correct.
A desist order was therefore handed out to the advertising agency, requiring
the campaign to be immediately stopped.
8. Administrative
Control
Topic:
Who:
When:
Where:
What Happened:
Unsolicited commercial communication - Profiling
Italian Privacy Watchdog (i.e. Special Authority for Protection of
Personal Data)
January – February 2007
Italy
Recently the Italian Privacy Commissioner thought that it was necessary to
address some marketing techniques, which it felt were clashing with local
provisions on personal data handling.
(i) A marketer aggressively targeted companies active in the sector of
transport with a fax promotion offering market research and consulting
services.
Some of the approached companies considered the repeated faxes delivered
to their business addresses as disturbing and – not succeeding in stopping the
practice through desist letters - filed a complaint with the Authority, which
opened a proceeding against the marketer.
The Privacy Commissioner:
- referred to its guide-lines on marketing performed through phone
connections,
- confirmed that according to these guide-lines for performing market
surveys/researches or direct sales and delivering promotional material,
advertising or commercial communication over the phone or via fax explicit inadvance consent of the targeted public had to be obtained (even though
addresses were available in public directories or on the Internet),
- ascertained that the marketer, while affirming that the infringing conduct had
been stopped, had actually insisted in its illicit practice, even in the course of
the proceeding in front of the authority,
- sanctioned the persistent non-compliance through an order banning the
marketer from accessing its own data bank (containing more than 3 million
addresses).
(ii) A publishing house, distributing magazines with articles on pregnancy and
problems in early childhood to mothers of newborn babies, attracted the
Authority’s attention with its practice of collecting personal data for profiling
and marketing purposes.
A couple complained with the Privacy Commissioner about the fact that, while
the mother and the baby were still staying at the maternity hospital, free
copies of the magazines had been delivered without achieving consent for
such practice.
During its enquiry the Authority found out that the publishing house had
collected – through doctors and nurses delivering questionnaires and being
rewarded with gifts accordingly to the quantity of information gathered –
thousands of personal (and partially sensitive) data and performed detailed
screening and monitoring both, on the young mothers as well as on their
babies.
As this practice was performed in blatant breach of the provisions of the local
Privacy Code, the Authority required the publishing house to immediately halt
its data collection and what the Commissioner actually considered as an illegal
“Moms hunt”. The company was also warned to not pursue its marketing
intents before having duly adapted the questionnaires used and without
having achieved explicit consent from targeted data subjects.
KOREA
Jay Young – June Yang
Kim & Chang
yjyang@kimchang.com
www.ip.kimchang.com
1. Legislation
Topic:
Who:
When:
What Happened:
Amendment of the Medical Service Act of Korea
National Assembly of Korea
January 3, 2007
In 2005, the Korean Constitutional Court invalidated Article 46 of the Medical
Service Act, which prohibited virtually all medical advertisement concerning
the service of medical treatment or the career of medical professionals,
holding that overall prohibition against medical advertisements might hinder
the free flow of information and endanger freedom of expression. Since the
Court’s decision in 2005, the medical advertisements have not been
regulated, so the exaggerated medical advertisements have become threats
to the public on the contrary.
Thus, the National Assembly amended the Medical Service Act on January 3,
2007 to regulate advertisement of medical professionals and medical
institutes in a more balanced way.
Article 46 of the Medical Service Act now provides that certain categories of
medical advertisements are prohibited, such as medical advertisement which
solicit unproved medical treatment, unduly guarantee the effectiveness of
medical treatment, advertisement mostly consisted of comparison with other
medical professionals or medical institutes, or advertisement showing surgery
scenes.
Newly adopted Article 46bis provides that all medical advertisements should
be monitored by the Minister of Health and Welfare as to the contents of
them.
Comments:
The amendment of the Medical Service Act will be effective as of April 4,
2007.
Some medical professionals expect that the new regulatory system on
medical advertisement will promote the medical industry after all, while others
think that the government monitoring system is problematic because it is
difficult to design detailed guideline for monitoring.
LUXEMBOURG
Laurent Fisch
Nicolas Van Heule
Molitor, Fisch & Associés
laurent.fisch@mfa.lu
nicolas.vanheule@mfa.lu
www.mfa.lu
1. New Legislation
Topic:
Where:
What Happened:
Distance marketing of consumer financial services (implementation of
2002/65/EC directive)
Luxembourg
The distance marketing of consumer financial services is now governed by the
new law of 18 December 2006.
The law only applies to relationships between consumers and professionals
and introduces specific obligations for the professionals who offer their
services to consumers. These obligations mostly focus on the consumer
information requirement.
The notion of “service” includes banking activities, credits, insurance,
pensions, investments and payments.
Under the law professionals must clearly provide the consumer with
information relating to their identity (incl. their activity, third parties involved,
competent monitoring authority), the financial services they offer (general
characteristics, total price of the service, any offer’s duration limit, …) and
compulsory wording relating to distance agreements.
The professionals must clearly inform the consumer that the message has a
commercial purpose and must receive the explicit consent from the consumer.
In addition, professionals have to be clear about the contractual terms and
conditions in paper format or on another durable medium available and
accessible to the consumer in good time before the consumer is bound by any
distance contract or offer.
Finally, the consumer has a 14-days period during which he can freely
withdraw from the contract without penalty and without giving any reason.
2. Topic:
Where:
What Happened:
Intellectual Property
Luxembourg
The new Benelux Convention on Intellectual Property (hereafter the "BCIP")
has come into force on 1st September 2006, and, as a consequence, the
Benelux Convention on Trademarks of 19 March 1962 and the Benelux
Convention on Designs of 25 October 1966 has been repealed. However, the
rights created under the "old" conventions still remain in force.
The BCIP creates a new organisation: the Benelux Organisation for
Intellectual Property (the "BOIP") which replaces both the Benelux Trademark
Office and the Benelux Designs Office. The BOIP has now a clear
international status and is independent from the three Benelux countries:
Belgium, The Netherlands and Luxembourg.
Another major change introduced by the BCIP is the abolition of the automatic
preliminary search for previous registrations in the case of a trademark filling.
Nevertheless, it is still possible for clients to ask for a preliminary search.
As the BCIP replaces two different acts, it was necessary to carry out an indepth reorganisation of the provisions in order to make it clearer and easier to
read. The structure of the legal text has been changed as well as the numbers
of the provisions.
3. Topic:
Where:
What Happened:
Decision on comparative advertising and parasitism
Luxembourg Court of appeal, 21st March 2007
Tango, the mobile operator of tele2 in Luxembourg, is well known for its
aggressive advertising campaign in Europe. Recently, Tango launched a
campaign comparing its prices and services with those of “Poste &
Telecommunications” (hereafter “P&T”) the formerly publicly owned
Luxembourg phone company.
P&T had used the word “integral” to qualify its offer for an all-in-one package
including phone/mobile phone/ADSL connection. The package was a large
success among consumers in Luxembourg. Although the word “integral” was
not a P&T registered trademark, it was clearly identifying the package of P&T
in the public with specific colors and designs.
At the end of the year 2006, Tango launched an advertising campaign under
the name “integral+” in order to show that its all-in-one offer was broader than
the offer of P&T. Tango used the same designs and colors as those used in
the P&T advertisement. Tango also used a price comparison table clearly
showing that its own offer was cheaper than the P&T offer.
P&T decided to sue Tango for unfair competition as well as for misleading
advertisement and for parasitism (taking unfair advantage of the investments
of a competitor).
On the parasitism issue, the Court decided that it was proved that Tango had
taken an unjustified advantage from the investments and the efforts of P&T
even if P&T had not registered the trademark “integral” given the expression
was well-known among the public.
On the misleading advertisement, the Court applied the law of 30 July 2002
regulating some commercial practices. This law includes 18 conditions that
have to be fulfilled by a comparison advertisement in order to be legal (article
18(2) of the law). Among these conditions, the Court stressed the loyalty, the
objectivity, the avoidance of misleading messages, the avoidance of negative
opinions on a competitor product or service, the exact information.
The Court decided that the Tango campaign did not fulfill these conditions
since it did not mention some of the advantage of the P&T package (e.g. free
installation). Tango did not mention some of the disadvantages of its own
package (e.g. varying prices for the installation).
Decision: The Court of appeal has condemned Tango to stop its
advertisement campaign with a daily penalty EUR. 5,000.00 with a maximum
of EUR. 125,000.00 starting one month after the notification of the decision.
Tango was also condemned to pay the proceedings costs.
4. Topic:
Where:
What Happened:
New law on the development of “internet highways”
Luxembourg
The law of 22 December 2006 on the construction of the “internet highways”
has been passed. This law allows the government to determine a company
which will be entitled to build, develop and manage an optical fiber network in
Luxembourg.
5. Topic:
Double agreement between the Luxembourg Bank Association (ABBL),
the copyright management company (SACEMLUX) and the Luxembourg
Organization for Reproduction Rights (LUXORR)
Luxembourg
Members of the Luxembourg Bank Association are now entitled to lawfully use
copyrighted songs as a “waiting music” on the phone. (agreement with
SACEMLUX)
Where:
What Happened:
Members of the Luxembourg Bank Association can freely reproduce texts and
images coming from the press in order to publish it on their intranet.
(agreement with LUXORR)
MALAYSIA
Patrick Mirandah
patrick mirandah co. sdn bhd.
pmirandah@mirandah.com
www.mirandah.com
1. Case Report:
Topic:
When:
What Happened:
Communications and Multimedia Forum of Content in Malaysia
The coming into effect of the Content Code with regards to Advertising to
Children
2006
The Communications and Multimedia Forum of Content in Malaysia was
established in 2001 to govern content and address content related issues
disseminated by way of electronic networked medium.
Through its Content Code, guidelines and procedures for good practice and
standards of content disseminated for public consumption by service providers in
the communications and multimedia industry would be set out, and a
commitment towards self-regulation by the industry in compliance with the
Communications and Multimedia Act 1998 would be demonstrated.
Comment:
2. Case Report:
Topic:
When:
What Happened:
Comment:
Part 3 of the Code, particularly paragraph 7.2, makes specific provisions for
advertising and children. Clear illustrations are provided to avoid ambiguous
interpretation of its substance, e.g. illustration (iii) which provides that medicines,
disinfectants, antiseptics, caustic substances, pesticides and all aerosol
preparations must not be shown within the reach of children without close
parental supervision. Neither can they be shown using them.
The Content Code would seek to identify offensive and objectionable content
while spelling out the obligations of content providers within the context of social
values in Malaysia.
Malaysian Health Promotion Board Act 2006
Enactment of Law to promote Health
Came into effect on 29th June 2006
The Malaysian Health Promotion Board Act was given its royal assent on 15th
June 2006. The Act establishes the Health Promotion Board to supervise
matters incidental to health, i.e. any action or activity that strengthens the health
skills and capabilities of individuals, groups and communities in Malaysia as well
as enhances social and environmental conditions so as to improve their health
status.
The Malaysian Health Promotion Board functions as follows:(a) to develop the
capacity of organizations including health related and community based
organizations for health promotion;(b) to plan and implement health promotion
programmes and activities for the benefit of the community, with a particular
focus on youth;(c) to develop and support multi-strategy programmes that
promote and support healthy lifestyles and healthy environments through various
settings and sectors;(d) to develop and support programmes to improve
population health by preventing, reducing or stopping the use of tobacco
products;(e) to fund research relevant to health promotion; (f) to fund and
support sporting, recreational and cultural organizations to promote healthy
lifestyles and healthy environments; and (g)to liaise, assist and collaborate with
other international organizations with similar missions and objectives for mutual
support and development as well as further the development and progress of
health promotion in the world.
The Board would now oversee and supervise organizations that are involved in
promoting and developing health and its related issues to the community
3. Case Report:
Topic:
When:
What Happened:
Comment:
4. Case Report:
Topic:
When:
What Happened:
Electronic Commerce Act 2006
Enactment of Law to recognize electronic messages
Came into effect on 19th October 2006
The Malaysian Electronic Commerce Act was given its royal assent on 30th
August 2006. The Act provides for legal recognition of electronic messages in
commercial transactions, the use of the electronic messages to fulfill legal
requirements and to enable and facilitate commercial transactions through the
use of electronic means and other matters connected therewith.
It further provides that it is not mandatory for a person to use, provide or accept
any electronic message in any commercial transaction unless the person
consents to the using, providing or accepting of the electronic message; and that
a person’s consent to use, provide or accept any electronic message in any
commercial transaction may be inferred from the person’s conduct.
The implementation of the Act would now enable consumers making purchases
via the internet to bring their cases to the tribunal without going through courts.
The Act can now be used as there has been an increase in internet usages for online purchasing, as prior to this, there were no laws governing internet
transactions and the public are not able to bring their cases to the tribunal if
fraud occurs
Malaysian Medical Association’s Circulars Advice to Consumers
Advise on online Advertisements of Drugs/Treatments
7th June 2006
The Malaysian Medical Association advised the Malaysian public against
purchasing drugs or medicine online without a doctor’s prescriptions saying that
those who do so may run the risk of being cheated or worse still receive the
wrong prescriptions and advice for their ailments.
The Medicines (Advertisement & Sales) Act 1956 prohibits promotion of
medicine for a number of diseases including AIDS, tuberculosis, cancer, etc.
Only drugs approved by the Medicine Advertisement Board can be advertised.
It is important to ensure that advertising and marketing via the Internet should
not encourage irresponsible self-medication, purchase of medicines that are
inappropriate or purchases of larger quantities of medicines than required for the
patient's medical condition.
Consumers must be encouraged to treat medicines as special products to be
stored and used with care, in accordance with professional advice, when
necessary. It is vitally important that people should be encouraged to seek
medical advice where that is the right course of action and there should be no
inappropriate marketing of medicinal products available for sale online without
medical prescription.
Comment:
Although advertising online is helpful in informing people about medicines
available for self-medication, it should always be responsible and should support
rather than inhibit the advisory role of health professionals.
It is important to ensure that advertising and marketing via the Internet should
not encourage irresponsible self-medication, purchase of medicines that are
inappropriate or purchases of larger quantities of medicines than required for the
patient's medical condition.
5. Case Report:
Topic:
When:
What Happened:
Government Considering Ban on Fast Foods Advertisements
Fast Food a Health Concern
23rd February 2007
The Malaysian government recently issued an immediate directive that all
advertisements concerning fast foods are to be stopped with immediate effect.
This action gained public attention in the wake of the government’s concern over
the increase of health problems in the country, with fast food products being
touted as being the main reason. The Health Ministry is already making
recommendations of banning such advertisements to the Cabinet.
The trend of the fast food industry has over the past few years adopted a cultural
trend of linking their products with entertainment, especially with movie and
cartoon characters to address consumers. Brand-name foods and drinks such as
Mc Donald’s and Coca-Cola appear on toy cars and helicopters; fast-food chains
promote “educational” games and “scratch-and-win” contests.
The banning of advertising of fast food products was primarily motivated by the
increasing number of Malaysians suffering from “affluent” diseases, such as
diabetes, hypertension causes and the critical rise in obesity among children and
adults.
Comment:
The Health Ministry also added that the move would also cover endorsements of
events linked to fast food. To further support the stand, a fast food “sin tax” is
also being considered.
This move would affect several companies and operators of fast food outlets, as
revenue from fast food advertising on TV, newspapers and billboards totaled
millions of ringgit annually.
Although the Information Ministry admitted that this move would have an adverse
impact on the advertising industry in Malaysia, the people's health is the top
most priority concern. If this is left unprotected, the quality of health will drop and
the government has to spend millions of ringgit to tackle the problem.
6. Case Report:
Topic:
When:
What Happened:
Government Against Pan-Asian Models
Banning of Pan Malaysian Models from local advertising
25th February 2007
The Information Ministry announced the enforcement of the ban on foreign
flavoured advertisements and models with Pan-Asian looks that were being
featured on private television channels, newspapers and billboards.
According to the Information Ministry, the ban had been long imposed by the
nation’s premier broadcaster, Radio Televisyen Malaysia (RTM) and it would still
be maintained.
According to a survey conducted to gather feedback on the subject matter,
opinions surrounding Pan-Asians monopolizing the market, the desire to have
more ethnic looking faces in commercials, the displeasure of seeing locally made
goods being endorsed by foreign looking models, and the importance in letting
viewers understand the Malaysian culture and tradition instead of them staring at
good looking models were the primary concerns.
Comment:
A ban on Pan-Asian faces is already in force at two government owned
televisions, the print media and billboards The Ministry said that the ban would
cover all media, but it was not clear when it would take effect.
This move would affect several companies and operators of advertising
agencies, as revenue from such advertising on TV, newspapers and billboards
totaled millions of ringgit annually. It could also affect the livelihood of pan-asian
models that rely heavily on these opportunities to make their income.
On the other hand should no such ban be brought about it could have a
psychological effect of inferior complexity in respect of looks amongst the
Malaysian community.
MEXICO
Roberto Arochi
Francisco Garza
Arochi, Marroquinn & Lindner
rarochi@aml.com.mx
fgarza@aml.com.mx
www.aml.com.mx
1. Case Report:
Topic:
Where:
When:
What Happened:
SELF REGULATORY ENTITIES INTERACTIVE WITH AUTHORITIES
Common advertising criteria
Federal Consumer Protection Agency
September 2006
The Federal Consumer Protection Agency is paying more attention to the Self
Regulatory Advertising entity CONAR, where both entities are holding
meetings with common group works to create a new modification to the
regulations in order to homologate criteria related to advertising Code of Ethics
and the law.
2. Case Report:
MEXICAN SUPREME COURT CRITERIA ON ARTICLE 32 OF FEDERAL
CONSUMER PROTECTION LAW
Application of article 32
Mexican Supreme Court
June 2005
By this judicial decision The Federal Consumer Protection Agency is now
obliged to follow the general procedure established in the Law when it is
revising advertising related procedures based on the application of article 32,
and the authority is not entitled to establish the concept of misleading
advertising since the definition of said concept is contained in article 32.
Topic:
Where:
When:
What Happened:
NEW ZEALAND
Erich Bachmann
Monica Choy
Lisa Clark
Hesketh Henry
erich.bachmann@heskethhenry.co.nz
monica.choy@heskethhenry.co.nz
lisa.clark@heskethhenry.co.nz
www.heskethhenry.co.nz
1. Title
Topic:
Where:
When:
What Happened:
Advertising Codes
Kids are evil. Feed them!
New Zealand
November 2006
A New Zealand pizza company distributed flyer advertisements to letterboxes
around the country which were headed up:
"Kids are evil
Feed them!"
Beneath this was a cartoon image of a red "childlike" devil character holding a
sling-shot with pizza slices and pizza sauce splattered on and around him.
Complaints were received from numerous parties expressing concern at the
promotion of a negative message about children and the caricature that
featured in the advertisement.
Comment:
2. Title
Topic:
Where:
When:
What Happened:
The Advertising Standards Authority found that the absolute statement "Kids
are evil" met the threshold to cause widespread offence which in part was
confirmed by the number of complaints received. The majority of the
Advertising Standards Authority Board agreed that the statement "Kids are
evil" reinforced a negative attitude to its children and that the statement was
not saved by humour or satire. The Board therefore determined that the
advertisement had not been prepared with a due sense of responsibility to
consumers and society and was in breach of basic principle 4 of the Code of
Ethics. The Board also confirmed that the advertisement was likely to cause
widespread offence and was therefore in breach of Rule 5 of the Code of
Ethics and principles 2 and 6 of the Code for People.
Hell Pizza had earlier in the month been in trouble for its advertising campaign
for a meat lovers' pizza called "Lust" which involved dropping condoms
accompanied by explicit instructions in people's letterboxes (generating a
record of over 600 complaints to the ASA from people offended by the method
of delivery and concerned children would pick up the items). The ASA found
that the promotion was in breach of Rule 4 (decency) of the Code of Ethics in
light of generally prevailing community standards.
Ambush Marketing
New Zealand Tackles Ambush Marketing
New Zealand
December 2006
The New Zealand Government is drafting a Major Events Management Bill to
help prevent ambush marketing in connection with events such as the Olympic
and Commonwealth Games. Ambush marketing occurs where a person or
organisation represents that it is associated or in some way connected with
the event, when it is not, to the detriment of its competitors who are official
sponsors and will have paid for their sponsorship or in some other way
sponsor the event. Ambush marketing is similar to passing off.
Comment:
3. Title
Topic:
Where:
When:
What Happened:
Comment:
4. Title
Topic:
Where:
When:
What Happened:
The Bill is directed at supporting activities such as the Olympic and
Commonwealth Games but more particularly is likely to be used in
tournaments being held in New Zealand such as the Rugby World Cup in
2011, the Cricket World Cup in 2015 and the World Rowing Championships in
2010. In drafting the legislation the New Zealand Government has had regard
to the recent London Olympic Games and Paralympics Games Act 2006 as
well as similar legislation in Australia and New Zealand. It will mainly protect
the event and its sponsors by creating clean zones, preventing unauthorised
advertising around the area where the event is taking place, and also
preventing unauthorised parties misrepresenting that they are in some way
connected with the event or with the person who is authorised to provide
goods or services in connection with that event.
It is hoped that the Bill will become law in New Zealand by the middle of 2007.
Misleading Advertising
A lesson still being learned
New Zealand
October 2006
Four months after the New Zealand Commerce Commission fined Air New
Zealand for misleading advertising of its airfares, a second major airline has
been fined for similar practices. Qantas is the second airline to plead guilty to
misleading the public in its advertisements and has been fined $380,000. Air
New Zealand was fined $600,000 for similar behaviour in June 2006.
The Commerce Commission prosecuted Qantas after customers complained
that they had to pay more than the advertised price for airfares because of
extra 'surcharges' and 'levies.' In some advertisements the price was
misleading because the extra charges were not disclosed; in others, extra
charges were imposed to cover normal operating costs, such as the cost of
fuel, when they should have been included in the price. The Commission is
concerned with such behaviour because "without accurate advertising,
customers can't shop around and airlines have no incentive to compete and
offer lower fares."
Qantas and Air New Zealand are now using all-inclusive prices in their
advertising and most other airlines and a number of major travel agents have
also moved to all-inclusive prices.
Copyright Law
The Copyright (New Technologies and Performers' Rights) Amendment Bill
New Zealand
February 2007
The Copyright (New Technologies and Performers' Rights) Amendment Bill is
currently before Parliament. The Bill's intention is to clarify the application of
the Copyright Act 1994 to digital technology and provide a technology-neutral
framework, in order to maintain the balance between the protection afforded to
owners of copyright works and the public's legitimate rights of access to those
works. In summary the Bill:
• Introduces new exceptions to allow for format-shifting of sound
recordings for private and domestic use, and for decompilation and
error correction of software;
•
Comment:
5. Title
Topic:
Where:
When:
What Happened:
Limits the circumstances for potential liability for copyright
infringement of Internet Service Providers;
• Expands provisions relating to technological or informational means of
protecting copyright, facilitates the exercise of permitted acts where
such protection measures have been applied and introduces offences
for dealing in devices designed to circumvent those protection
measures;
• Clarifies exceptions to copyright owners' exclusive rights in relation to
fair dealing, library, archival, and educational use and time shifting.
The Bill reflects the current thinking internationally that the ability to control
communication of a copyright work is as important as the ability to control the
copying of it. The Bill recognises that digital technology allows new ways for
both exploiting and infringing copyright works, given its ability for high-quality
reproduction and communication of material.
Credit Contracts and Consumer Finance
Successful prosecution for not adequately disclosing term and conditions to
customers
New Zealand
November 2006
New Zealand enacted its Credit Contracts and Consumer Finance Act in 2003
(the "CCCF Act"), with the aims of protecting the interests of consumers in
connection with credit contracts and consumer leases, ensuring that there is
adequate disclosure of information to consumers under such contracts to
enable them to distinguish between competing credit arrangements and be
aware of what they are committing to, and generally preventing oppressive
use of such contracts.
In November 2006, the first company was successfully prosecuted under
CCCF Act for not adequately disclosing term and conditions to customers.
Under the CCCF Act, creditors under a consumer credit contracts must ensure
that key information that is particular to the credit contract is disclosed to the
debtor either before the contract is made or within five working days of the day
on which the contract is made, including information about the debtor’s right to
cancel the contract.
The company in question provided finance to the customers of car dealers. It
pleaded guilty to 17 breaches of the CCCF Act for not adequately disclosing
the terms and conditions of its loans, and was fined $59,000.
Comment:
The Court found that documents provided to the customers had been faxed
and photocopied, and in some instances were so distorted that they were
impossible to read, meaning customers could not be said to have been made
aware of their right to cancel, among other things. In one instance, a car
salesman told a customer to use a magnifying glass to read the contract.
The Commerce Commission in New Zealand has indicated it intends to take a
strong line in such situations to ensure that consumers are protected.
Creditors who fail to adequately disclose the required information and then
attempt to enforce what is actually an unenforceable contract, e.g. by taking
action upon it such as sending default notices or repossessing the vehicle, run
the risk of a similar fate and also of being found to be in breach of the Fair
Trading Act.
NICARAGUA
Julián J. Bendaña - Aragón
Guy Jose Bendaña Guerrero & Asociados
julian.bendana@guybendana.com.ni
www.guybendand.com.ni
1. Case Report:
Topic:
Where:
When:
What happened:
Comment:
2. Case Report:
Topic:
Where:
When:
What happened:
Regulation (Self-Regulation)
Advertising and Promotional Practices
Nicaraguan Beer Industry
2006
Various competitors in the beer industry, including AmBev Centroamérica and
Compañía Cervecera de Nicaragua, S.A., approved a self-regulation code
which regulates the advertising and promotional practices to be followed,
underlining their commitment to implement responsible business practices in
accordance with the principles of fair competition and social responsibility.
The aforementioned code contains various sections: a) introductory section;
b) content of advertising; c) protection to minors; d) basic principles; and e)
norms and compliance.
This is one of the first self-regulation codes to be implemented in Nicaragua,
and the guidelines contained therein surpass all requirements found in the
legal provisions in connection with alcohol advertising. For example, said
code requires that any person participating in ads and commercials, as well as
any promotional event, must be at least 23 years old and must physically
appear to be older than said age.
Unilever de Centroamérica, S.A. vs. Empacadora Del Carmen
Labeling, false and deceptive information
Consumer Protection Agency (Dirección De Defensa Del Consumidor –
“DDC”)
2006
Unilever N.V.’s local distributor, Unilever de Centroamérica, S.A. (“Unilever”)
informed the DDC of various irregularities found in the products produced and
distributed by Empacadora Del Carmen (“Del Carmen”), in connection with
ketchup and mustard products sold under the trademark
.
In an earlier trademark administrative dispute, the Nicaraguan Intellectual
Property Registry considered that said trademark was confusingly similar to
, which also is used in connection
Unilever’s registrations for
with similar goods, and the case is now closed.
Unilever informed the DDC of the close resemblance between the trademarks,
as well as some irregularities found in the labeling of Del Carmen’s products,
including illustrations which could mislead consumer into mistakenly acquiring
the products instead of those distributed by Unilever. Also, Unilever pointed
out that Del Carmen’s products did not comply with labeling requirements,
such as lacking expiration date and indication of health registry, among others.
The DDC proceeded to investigate the matter and reached the conclusion that
Del Carmen was infringing various provisions of the Consumer Protection Act
(“Ley de Defensa de los Consumidores”), ordering the immediate removal of
Del Carmen’s products, including those found at points of sales and in
inventory at the fabric.
Comment:
3. Case Report:
Topic:
Where:
When:
What happened:
In the end, Del Carmen agreed to comply with the DDC’s order and to
distribute the products under a new trademark – which would not bear any
resemblance with Unilever’s – and to comply with all labeling requirements.
Using the DDC as a last resort, prior to initiating a trademark infringement
action, has proven to be of great assistance to trademark owners, as in some
cases results are swift and it is possible to avoid litigation.
3M Company vs. Manufacturera 3M, S.A. de C.V.
Well known trademark
Nicaraguan Intellectual Property Registry (RPI)
November 16, 2006
3M Company, owner of the worldwide famous trademark “3M”, filed an
opposition against the registration of Manufacturera 3M , S.A. de C.V.’s
trademark “3M & Design”, filed in International Classes 6, 7, 8 and 19:
3M Company based its opposition on its various 3M Nicaraguan registrations
covering classes 1, 6, 7, 8, 9, 11, 12, 14, 16, 20, 21, and 37, as well as the
worldwide fame of its 3M trademark (as well as local fame). In order to support
the latter argument, 3M Company filed as evidence a good number of 3M
registrations registered in several countries, as well as local and international
advertising materials and sales figures.
On the other hand Manufacturera 3M, S.A. de C.V. argued that “3M” is an
integral part of its name, and that the goods and services covered by their
application were different from those found in 3M Company’s registrations.
Comment:
The Nicaraguan Intellectual Property Registry (RPI) rendered a decision in
favor of 3M Company arguing that there were graphic, phonetic and
ideological similarities between both marks, which would create confusion
among consumers. Furthermore, said Registry also considered that 3M
Company was successful in proving that the “3M” trademark is well-known
locally and well as internationally (which would create the risk of confusion
among consumers even if both marks covered different goods and services).
This decision further underlines a recent trend in which the ruling Authorities
consider a trademark’s local use and diffusion - through advertising and
promotional materials - as an important factor when granting protection
reserved for well-known trademarks.
NORWAY
Hans E. Skirstad
Bente Holmvang
Bull & Co Advokatfirma AS
sk@bullco.no
bho@bullco.no
www.bullco.no
1. Case Report:
Topic:
Where:
When:
What happened:
Comment:
2. Case Report:
Topic:
When:
What happened:
The Marketing Control Act (Act No 47 of June 16, 1972 relating to the Control
of Marketing and Contract Terms and Conditions).
Implementation of EU decree no 2006/2004 of October 27, 2004.
Stortinget (Norwegian Parliament).
In force from March 1, 2007.
The decree assumes that all the EU countries establish official authorities for
the enforcement of laws protecting the consumer’s interest and that it is
established a binding co-operation between these authorities in the different
countries.
The decree is implemented in the Norwegian Marketing Control Act Chapter II
sections 9e-9g.
Even if Norway is not a number of the EU, Norway is through the EECAgreement obliged to implement the EU directives and decrees.
The Marketing Control Act (Act No 47 of June 16, 1972 relating to the Control
of Marketing and Contract Terms and Conditions).
Consumer Ombudsman’s office
Late 2006
The Consumer Ombudsman has over the last years been reluctant in the
enforcement of the Section 4 (Premiums) and Section 5 (Lotteries) in the
Marketing Control Act.
This has been due to a planned alternation of the Marketing Control Act
including Section 4 and 5.
Comment:
However, in late 2006 and in the beginning of 2007 the Consumer
Ombudsman has again started enforcement of both Section 4 (Premiums) and
Section 5 (Lotteries).
In practice, the Consumer Ombudsman's enforcements will affect those
international marketing programs with lotteries or premiums involving
Norwegian territory.
PARAGUAY
Hugo T. Berkemeyer
María Antonia Gwynn
BERKEMEYER Attorneys and Counselors
hugot.berkemeyer@berke.com.py
maria.gwynn@berke.com.py
www.berke.com.py
1. Case Report
Topic:
Where:
When:
What Happened:
Comment:
2. Case Report
Topic:
Where:
When:
What Happened:
Comment:
Vicente Scavone & Cía, Lasca Laboratory vs 2005 Bisolvon Philantropic
Campaign.
Health products and others Law
National Commision of Advertising Regulations (CONAR)
June 2, 2005
The firm Vicente Scanovne & Co, Lasca laboratories filed a claim agianst the
advertisement to the campaign called “Bisolvon Philantropic Campaign”
(Campaña Solidaria Bisolvon 2005) of the trademark “Bisolvon”, due to the
non compliance of the provisions of Article 6 of the Decree No. 764/03 by
which Law No 1119/97 of “Health Productos and others” is regulated,
especifically the chapter regarding “Promotion and Advertising”. The
infringement consisted in the use of images of children, teenagers, family
situations, that manifested or induced the welfare of the same.
The responsables were forced to modify the campaign by ceasing the
use of images that were in violation of said provisions.
Mr Pedro Fadul vs. Public Entities
Political Campaign Advertisements
Regulation, Provisions and Study of Communications Centre (CERNECO) and
National Commision of Advertising Regulations (CONAR)
June 1, 2005
Mr Pedro Fadul, in character of President of the political party Patria Querida,
expressed his concern for the political campaign advertisement of public
entities, that he considered unnecessary, expensive and that violated
provisions of the Law 1279/98.
CONAR answered that the State, acting as advertiser, is not subject to the
CONAR´s judgments nor to the compliance of its regulations, as the members
of CERNECO, advertisers, media an publicity agencies that participate in the
creation and conduction of an advertising message are. However, CONAR
could make a claim pursuant to Law No 1297/98 if it was provided with all
relevant facts.
The representative of Patria Querida was provided with the requeriments to
initate a process before the CONAR, such as the need to file a claim in written
with mention of all the relevant facts that allow the correct identification of the
advertisement causing the infringement.
The claimant did not wish to proceed with such claim.
3. Case Report
Topic:
Where:
When:
What Happened:
Comment:
4. Case Report
Topic:
Where:
When:
What Happened:
Comment:
5. Case Report
Topic:
Where:
When:
What Happened:
Comment:
CERNECO vs. Beer, trademark CONTI
Lack of mandatory health warning
Regulation, Provisions and Study of Communication Centre (CERNECO)
May 11, 2006
CERNECO evidenced that the newspaper´s advertisements of the CONTI
beer did not have the mandatory health warning, the institution sent a note to
their legal representative in Paraguay, Monaco firm, who imported and
distributed the beer.
The advertisement was modified.
CERNECO vs. Firm Watson
Sex discrimination - Human dignity respect.
National Commision of Advertising Regulations (CONAR)
August 29, 2006
The Watson´s advertisement “Yes, Daddy” (Si, papa) had an negative social
impact because of the image of a women (sexual feautures) completely
subject to the men´s will. Many sectors of the society and public institutions
such as Women´s Secretariat and the Capital´s Municipality claimed to
remove these advertisements.
It was alleged to violate Articles 7 and 10 of the Autoregulation Code and the
principles of said legal body.
The advertisement was taken from all the media and the firm was
force to change its advertisement.
FCTC Enactment
Amendment of Tobacco advertisement regulations.
Ministry of Health, Tobacco Control Department
2006
Pursuant to the enactment of the Framework Convention of Tobacco Control
of the WHO, the Tobacco Department of the Ministry of Health has
commenced actions to amend the current provisions regarding advertisement
of tobacco products.
Until today, no further developments were performed for not being a
priority in the Ministry´s agenda.
POLAND
Dr. Ewa Skrzydło-Tefelska
Eric Rheims
SKS Legal Advisors
ewa.tefelska@skslegal.pl
eric.rheims@skslegal.pl
www.skslegal.pl
1. Case Report
Issue:
Where:
When:
The facts of the
case and
settlement:
Advertising of medicinal products
Judgment of the Court of Appeals in Poznań rejecting the appeal from
judgment of District Court
14 September 2005
In short, all advertising relating to a medicinal product:
• must be compatible with the information listed in the product's
characteristics;
• must not be misleading, within the meaning of Council Directive
84/450/EEC (Official Journal L 250, 19.09.1984).
• advertising to the general public of medicinal products which are only
available on medical prescription is prohibited
BIOPRAZOL, a prescription drug, was advertised in a specialized magazine
for doctors, informing that the medicine contained the active ingredient used
i.a. for preventing peptic ulcer disease (“PUD”). The product characteristics of
BIOPRAZOL however did not provide for PUD prevention. Company “B”,
which had a similar product but with a wider product characteristic, that did
encompass PUD prevention, filed a complaint claiming that the producer of
BIOPRAZOL (company “A”) committed an act of unfair competition within the
meaning of Article 16 of the Act on Combating Unfair Competition (advertising
contrary to provisions of law). Both, District and Appeal Courts accepted the
argumentation of B.
The final award pointed that the advertising was seeking to circumvent law.
The judges confirmed in the ruling that the registration with the competent
authority concerns therapeutic indications of a medicinal product and not of
its active ingredient. Hence it is only allowed to advertise (under specific
conditions) the medicinal product itself and not its active ingredient.
Comments:
It’s worth emphasizing that both courts stated that the advertising was
misleading. It could create the erroneous conviction that the product is
recommended for preventing PUD since the graphic form of the advertising
was focused on the product and not additional information there under (the
font used, its size and background color were intentionally merging). The
judge appealed to his life experience to support the statement that text written
with smaller font is rarely read. A’s intention was thus to identify BIOPRAZOL
with the characteristics of its active substance only.
True information may sometimes be considered misleading!
2. Case Report
Issue:
Parties:
Where:
When:
The facts of the
case and
settlement:
Advertising of legal services
Marek Śniegucki vs. Krislex
District Court in Łódź
September 2006
Poland’s forbids advertising the services of barristers (adwokat) and legal
counselors (radca prawny). Both are professions of public confidence, selfgoverning and offering a high level of services. To the contrary, it is allowed to
advertise legal consultancy services, which may be conducted by any
individual with a master degree in law.
The plaintiff is a legal counselor. The defendant is a group of firms providing
legal consultancy services under one name, the Krislex trademark. The
advertising was a leaflet offered to pedestrians passing in front of the court
premises. The leaflet stated i.a.:
- that Krislex is the “biggest country-range network of licensed legal
offices”;
- it has “Qualified lawyers for the best prices in the city”;
- the company acts upon permits (providing a serial number);
- “Barrister are too expensive? Check our prices”.
The plaintiff referred to the Act on Counteracting Unfair Competition seeking to
prohibit Krislex unfair practices by distributing such leaflets in front of the court
buildings. According to him such behavior also was detrimental to the authority
of the court.
The defendant refuted the claims referring to the internal structure of its
enterprise: Krislex offices use the trademark upon a license agreement, thus
only licensed firms are allowed to act under such name. It claimed that it acted
legally distributing its leaflets and there is no basis for prohibiting it doing so.
The judge recognized that Krislex is not allowed to call itself a “licensed office”
since the activity it conducts does not require any license or authorization from
public administration – consumers could thus be mislead as to the firm’s
qualification. The judge also ruled that Krislex cannot compare its prices to
other subjects acting on the market. Nothing however precludes the leaflet
distribution in proximity of the court buildings.
Comments:
The defendant appealed the judgment.
For a certain time advertising of services provided by barristers and
counselors was broadly discussed. One of the arguments raised in favor of
allowing such advertising was the fact that those self-governing professions
are powerless against aggressive advertisements of legal consultants. The
above judgment illustrates a new mean at barristers and legal advisors
disposal, protecting them against unfair competition.
The award is equally important for the consumers’ protection – although
judicial precedents are not binding for other courts in Poland, it may have
certain influence in similar cases concerning regulated business activities,
especially if the court of appeals confirms the first judgment.
3. Case Report
Issue:
Parties:
Where:
When:
The facts of the
case and
settlement:
Comments:
Unfair advertising
Procter & Gamble vs. Henkel
Judgment of the Court of Appeal in Warsaw
February 2007
The advertisement of a washing powder produced by Henkel stated, “Ariel
Platinum contains active components of stain removers. This is why it
removes so difficult stains better than other powders available on the market”.
Procter & Gamble accused Henkel of having committed an act of unfair
competition by misleading advertising, since substances called active
components of stain removers do not exist in reality. The defendant
acknowledged that the name was invented for the purposes of the
commercial. The defendant however argued that the purpose of the
advertising was not to mislead, but to underline the effectiveness of the
powder and the active components of stain removers was in fact a
simplification.
The judge verified all statements contained abbreviation in the advertising.
The word active was Crucial. In the opinion of the court this word did not refer
to the composition of the powder but to its effectiveness – it did not mean that
the powder had the characteristics of a stain remover. The claim of an ideal
washing is probably a bit exaggerated, but it is allowed to say a little more
than true, while advertising, awarded the judge.
The issue in the above case was to delimit the border between what
constituted allowed exaggeration in advertising and what exceeded it. In our
opinion the court erred in recognizing that the advertising did not inform the
consumers on the composition of the powder but of its characteristics. The
commercial stated explicitly that the powder contained a substance, which in
fact does not exist. A person who has no knowledge of chemistry confronted
with the use of a pseudoscientific term in the advertisement could be mislead
and thus influenced by it.
PORTUGAL
César Bessa Monteiro
Azvedo Neves, Benjamin Mendes, Bessa Monteiro, Cardigos & Associados
c.bmonteiro@abbc.pt
www.abbc.pt
1. Self-Regulation /
Case Report
Topic:
Who:
When:
Where:
What Happened:
Comment:
2. Self-Regulation /
Case Report
Topic:
Who:
When:
Where:
What Happened:
Unlawful and Discrediting Advertising – Unfair Competition – Misleading
Advertising
The Jury of the Civil Institute of Self Regulation in Advertising (ICAP)
December 2006
Portugal
A company which owns a well known supermarket chain ran a series of
advertisements in both TV and Radio stations in which the a known television
host interviewed a worker from the supermarket in which he claimed that the
prices of that supermarket chain were the lowest in the market and then the
host stated the following: “this is true, this is not just advertising”. The ICAP
Jury considered that this claim was in violation of the obligation of a “law
abiding, decent, honest and truthful advertising” with “high standard of social
responsibility and respectful of the principles of lawful competition” as this
statement is considered to endanger the public trust in advertising and, in the
end, it must be considered as misleading as it leads the consumer to think that
all advertising is generally untruthful.
This advertising claim illustrates a general belief of a significant part of
consumers that advertising is always trying to “trick” the consumer.
However, the decision tries to clear up this understanding as it is
important for the consumer not to have this opinion in advertising.
Otherwise, advertising would loose all credibility and one of its main
principles - truthfulness – would make no sense.
Misleading Advertising of Health Products, Labeling and Use of Testimonials
The Jury of the Civil Institute of Self Regulation in Advertising (ICAP)
July 2006
Portugal
A famous beverage manufacturer company launched a new beverage that it
advertised as being water with the following claim spoken by a man in a white
coat uniform as if it was a nutritional doctor: “the first water that helps you
control your weight and that should be drank on a daily basis”. However, a
competitor filed a complaint stating that it considered that it was a soft drink
and not water. Moreover, the complainant stated that the labelling was
incorrect as the reference to the fact that this was a soft drink was hidden. The
Jury of ICAP considered that the reference to water in the advertising was in
fact misleading and that although it was not competent to control the placing of
the labelling, it had the power to analyse its contents and therefore,
considered that another claim contained therein (“loose weight with pleasure”)
was also misleading and in violation of the special prohibition of Article 22 of
the Advertising Code on “miracle” and health products, which especially
forbids advertisements which claim health related results without scientific
evidence. In what concerns the testimonial, the Jury also considered that
given the prohibition of a non personal advertising of a person wearing a
Comment:
3. Self-Regulation /
Case Report
Topic:
Who:
When:
Where:
What Happened:
Comment:
4. Self-Regulation /
Case Report
Topic:
Who:
When:
Where:
What Happened:
Comment:
professional uniform, the advertisement was illicit.
This decision shows the growing importance of advertising with
regards to food and health products and the high standard of control
that the law sets for such advertising.
Misleading Advertising – Scientific Studies to Substantiate Claims
The Jury of the Civil Institute of Self Regulation in Advertising (ICAP)
July 2006
Portugal
A world renowned food company advertised one of its new products: yoghurt,
claiming that “73% of the Portuguese confirmed to be satisfied” with this new
product. A competitor filed a complaint with ICAP, on the grounds that such
claim was misleading since it leads people to believe that from the whole of
the Portuguese population, 73% had confirmed to be satisfied with the results
of the product and that they had no market studies to substantiate that claim.
The Jury of ICAP considered that they were right and also considered that this
misleading intent was also confirmed by the size of the printing in the
newspaper and outdoors advertising. Additionally, they also considered that
even if there wasn’t this problem related to the reference to the whole of the
Portuguese population, the study would nonetheless by infringing due to the
fact that the exact figures of the scientific statistical study showed different
results and was associated to a consumption of a certain number of yoghurts
per day, number which was not mentioned in the advertising.
Often advertising is based on scientific statistical studies. As such, this
decision shows that when one wants to refer to such studies, it is
important to faithfully reproduce its contents and not to manipulate the
figures to ones advantage. Advertising claims are always subject to be
challenged by any competitor or by the supervising entities and,
therefore, companies ought to be prepared to demonstrate their
accurateness.
Misleading advertising to a skin care product and therapeutic products.
The Jury of the Civil Institute of Self Regulation in Advertising (ICAP)
December 2006
Portugal
A company which sells a product to help to produce a faster scar of the
“Herpes”, launched a wide spread advertising campaign of its product both in
newspapers and on TV, in which it claimed that the product treated Herpes
quickly. The ICAP jury decided that this advertisement was misleading due to
the fact that it did not make it clear that, in fact, the product does not heal
Herpes, which is incurable, but only helps to scar faster. Therefore, the
advertisement could only claim to be “Anti-Herpes” if it made such distinction
clear.
This is an important decision on a new type of products which are
appearing in advertising related to health issues. Although medical
devices and treatments are specially regulated, these types of
products are only subject to the general advertising rules. Therefore,
the supervising bodies tend to take a stricter approach when
analyzing advertising to these types of products.
5. Self-Regulation /
Case Report
Topic:
Who:
When:
Where:
What Happened:
Comment:
Misleading Advertising
The Jury of the Civil Institute of Self Regulation in Advertising (ICAP)
January 2007
Portugal
A consumer filed a complaint with ICAP against a newspaper company and an
associated advertiser: a company which sells, amongst other things, house
decoration articles, based on the fact that the defendants had published an
advertisement in which they claimed that the silverware that they were offering
in a joint promotion with the newspaper company, they claimed that the
silverware was an exclusive design by a famous Portuguese clothing stylist for
this offer, when, in fact, these had already been used by another company.
The company filed a defence stating that the stylist’s intervention was related
to the decorative motives and not to the design of the silverware itself. The
Jury considered that the advertising was misleading due to the fact that it did
not make such differentiation that the consumer could understand that the
claim was referring only to the decorative motives and not to the silverware
design.
This decision shows that when making claims, companies ought to be
as specific as possible, as the criteria when evaluating the level of
clearness of the message is very strict.
ROMANIA
Florentina Dumitrescu
Wood Lupascu Dumitrescu & Associates SCPA
florentina.dumitrescu@wldlaw.ro
1. Topic:
When:
What happened:
Vodafone
February 2007
The National Audiovisual Council (“NAC”) requested radio stations to stop
broadcasting the commercials included in the “Cartela cea cu vino-incoa” and
“Stapanul minutelor” spots regarding the Vodafone card and 5 cents extraoption, broadcast during 24 January 2007 to 31 January 2007.
NAC, in its public session of 13 February 2007, analyzed the spot for the
Vodafone card, broadcast by “Radio XXI” Station and decided that such spot
breached the provisions of the Code of Advertising Practice, Art. 2, item 2.4,
issued by the Romanian Advertising Council (“RAC”). Therefore, NAC requested
“Radio XXI” Station to immediately start observing the law.
Further to the analysis of the commercials, the Council established that the
information provided to the public does not give it the possibility to identify at
least the object of the promotion. The information is incomplete, unclear and may
mislead the purchasers through omission and ambiguity with regard to the price.
The contents of one of the spots does not correctly inform the public with regard
to the counter value of the extra-option, its term of validity (6 months) and the
restricted number of communication units (maximum 50 SMS/MMS units).
According to the provisions regarding advertising in the Audiovisual Code, the
price or tariffs shall be fully presented. For correct information of the public,
advertising referring to a special offer shall have to clearly and unequivocally
specify the date on which the offer ends, or other specific conditions, i.e. the
validity term of the extra-option forming the object of the promotion.
In reply, Vodafone claimed that “the offer consists of the purchase of the
promotional extra-option “5 cents” for 2 dollars, monthly credit. For such a fee,
the promotional offer provides the user monthly with the prices specified in the
commercial. The extra-option is valid for 6 months, starting from the purchase”.
However, such information is not included in the contents of the commercial.
Comment:
The standpoint expressed by the Ethical Committee of the Romanian Advertising
Council (RAC) establishes that the spot for “Cartela cea cu vino-ncoa” breaches
Art. 2, item 2.4 of the Code of Advertising Practice issued by RAC, by omitting to
specify the counter value of the option (2 dollars monthly credit), the limitation of
the term (6 months) and the restrictions related to the communication units
(maximum 50 units).
The Audiovisual Code provides that the price or the tariffs have to be fully
specified. The advertising referring to a special offer shall have to clearly and
unequivocally indicate the date on which the offer ends, or other specific
conditions, i.e. the validity term of the extra-option forming the object of the
promotion.
2. Topic:
When:
What happened:
Essentiale
February 2007
NAC requested TV stations to stop broadcasting the commercials included in the
“Essentiale. Essential pentru ficatul tau [Essentiale. Essential for your liver]”
regarding the Essentiale medicine, broadcast during 7 February 2007 to 11
February 2007.
NAC, in its public session of 13 February 2007, analyzed the commercial for the
Essentiale medicine, broadcast by “B1TV” TV Station and decided that such
commercial breached the provisions of the Audiovisual Code, Art. 144, para. (1).
Therefore, NAC requested “B1TV” Station to immediately start observing the
law.
Such commercial presents images of the liver as an operating machine. Then,
actor and TV show producer Gabriel Fatu is presented at the office, in front of a
computer, placing his hand to the liver as if he were in pain, after which he takes
a pill of Essentiale and swallows it.
On the left side of the screen appears: “Essentiale. Essential for your liver”, and
on the right the package of the medicine is presented.
At the end of the commercial the following warning is displayed: “Essentiale
contains essential phospholipids. This medicine is sold in pharmacies without a
medical prescription. The careful reading of the prospectus is recommended. If
unpleasant symptoms occur, please address to the doctor or pharmacist.”
NAC established that the commercial fails to comply with the provisions
regarding the advertising broadcasting regime in case of medicine products,
which regime is provided by the Audiovisual Code, Art. 144, para. (1), because
the promotion of such medicine was made by Mr. Gabriel Fatu, who is an actor
and audiovisual program producer.
Comment:
3. Topic:
When:
What happened:
The lawmaker prohibited the promotion of medicines by public persons,
considering that the presentation or recommendation of medicines by such
persons may influence the viewing public to purchase or administer medicines,
due to the fact that the public look to such public persons as role models.
NAC considers that the promotion of the Essentiale medicine by a public person
does not comply with the broadcasting conditions of advertising regarding
medicine products, as provided by the Audiovisual Code, Art. 144, para. (1).
Deer Antler
February 2007
NAC requested TV stations to stop broadcasting the commercials included in the
“Deer Antler” regarding the Deer Antler food supplement.
NAC, in its public session of 15 February 2007, analyzed the commercial for the
“Deer Antler” food supplement and decided that such commercial breached Art.
114, paras. (1), letter a) and b) and of Art. 138 of the provisions of NAC Decision
No. 187/2006 regarding Audiovisual Contents Regulation Code (“Decision No.
187/2006”). Therefore, NAC requested to immediately start observing the law.
Such commercials present the human body’s skeletal system, marking the areas
in which the food supplement acts.
At the end of the commercial, the food supplement and the following text are
presented on the screen: “Deer Antler, Relieves you of articular aches, Natural
bio-source of minerals (Ca, Mg, P, Na, K), Helps in articular diseases, Maintains
calcium in bones and fortifies the teeth, Fortifies the muscles.”
Comment:
4. Topic:
When:
What happened:
NAC established that the commercial for Deer Antler is broadcast in breach of
the legal provisions regarding the advertising broadcasting regime, because it
promotes a product presented with properties of prevention, treatment or
healing, which is prohibited by the legislation in the audiovisual field.
According to NAC Decision No. 187/2006, Art. 114, para. (1), letters a) and b),
the information presented in commercials or teleshopping transmissions should
not mislead the public, either directly or through the transmission, with regard to:
(i) the characteristics of the products, and especially, the nature, identity,
properties, composition, durability, origin or source and the manufacture or
production methods and (ii) effects or properties that the product does not have.
Coca-Cola
February 2007
NAC requested radio stations to stop broadcasting the commercials included in
the “Coca-Cola – Aduna-i pe toti in jurul mesei [Coca-Cola – Bring everybody
around your table]” spot regarding the refreshing drink Coca-Cola.
NAC, in its public session of 15 February 2007, analyzed the commercial for the
refreshing drink Coca-Cola and decided that such commercial breached the
provisions of Audiovisual Law No. 504/2002, Art. 33, para. (1), letter c, as
amended.
Therefore, NAC requested that law be immediately observed.
Such commercial presents images whereby the public is invited to purchase
Coca-Cola products to gather caps and thus to win “one of the collection glasses
with the Coca-Cola family”.
NAC established that the message regarding the promotion of such advertising
campaign is sent to the public by a child and, as a result, it considered that the
commercial encourages children to purchase Coca-Cola products, acquiring for
the purpose of collection glasses.
Comment:
5. Topic:
When:
What happened:
NAC considered that it is well-known that minors are influenced, throughout their
growth process, by the persons around them, and especially by persons of their
age, creating role models whose attitudes, gestures, etc, they try to copy.
According to Audiovisual Law No. 504/2002, Art. 33, para. (1), letter c)
“Advertising should not cause any moral, physical or intellectual damage to
minors and, especially should not take advantage of the special trust the minors
have in parents, teachers or other persons.”
Chio Chips
February 2007
NAC requested TV stations to stop broadcasting the commercials included in the
“Chio Chips – Bancnota [Chio Chips – the Banknote]” regarding the Chio Chips
product.
NAC, in its public session of 20 February 2007, analyzed the commercial for
Chio Chips, and decided that such commercial breached the provisions of
Audiovisual Law No. 504/2002, Art. 3, para. (2). Therefore, NAC requested that
the law be immediately observed.
Such commercial presents images of a young man in a short dress who takes
out from a Chio Chips bag a coupon on which a banknote is printed with the face
of Mihai Eminescu. The young man walks into a club where he dances and tries
to find the complementary half of the coupon which is held by certain girls who
wear pants (blue jeans). Only the third girl offers him the matching half of the
coupon. The next image presents the girl, this time wearing a dress, dancing
with the boy, who is now wearing blue jeans.
The reunited image of the two halves of the coupons has the value of “500 LEI”
inscribed.
Several images of banknotes appear on a few bags of “Chio Chips”
accompanied by the slogan “Find the perfect match.”
NAC established that there is obvious inconsistency between the allegations
from the verbal message regarding a banknote and the images which present
the so-called banknote in the bag, in fact, just a mere piece of carton.
Comment:
6. Topic:
When:
What happened:
Therefore, the commercial for the “Chio Chips” product sends a message which
misleads the viewing public in the possibility of earning an immediate gain when
opening a bag of Chio Chips. However, this fact is not accurate, because the
Chio Chips bags include only simple papers printed with images of halves of
banknotes.
According to Audiovisual Law No. 504/2002, Art. 3, para. (2) “All
radiobroadcasters shall have the obligation to ensure the objective information of
the public through the accurate presentation of facts and events and to favor the
free formation of opinions.”
Asilife – five star health
February 2005
NAC requested radio stations to stop broadcasting the commercials included in
the “Asilife– sănătate de cinci stele [Asilife – five star health]” regarding the
Asilife medical insurance.
NAC, in its public session of 20 February 2007, analyzed the commercial for
Asilife – five star health, and decided that such commercial breached the
provisions of NAC Decision No. 187/2006, regarding the Audiovisual Contents
Regulation Code, as amended Art. 158 . Therefore, NAC requested that the law
be immediately observed.
NAC established that such commercial does not promote the “Asilife” private
insurance, but a private medical unit (equipped with state-of-the-art appliances
and providing the comfort of a five star hotel, as specified in the commercial)
where potential insured persons or other persons may benefit from the medical
services they would need.
Both the commercial and the web address displayed on the screen refer to a
private clinic, i.e. Bucharest Memorial Hospital, providing all data and information
necessary to a person interested in identifying and requesting its services.
As a matter of fact, the analysis of the contents of the web page reveals that this
insurance is of two types, i.e. asiLife Gold and asiLife Silver, and few minimum
characteristics are provided for each of them, without providing any information
necessary to a person interested in making such a health insurance.
In this way, on the one hand, a private medical unit is promoted, fact which is
prohibited by the legislation in the audiovisual field and, on the other hand, the
minimum information about the contents of such a health insurance is not
provided to the public, given the situation in which such public would be
interested in purchasing such a service.
NAC established that, under the pretext of promoting a health insurance service,
the commercial "Asilife – five star health" advertises a private medical clinic,
which advertising is prohibited by the Audiovisual Code, for the purpose of
ensuring a balanced competitive environment on the State or private medical
institutions market.
Comment:
According to the provisions of NAC Decision No. 187/2006, regarding the
Audiovisual Contents Regulation Code, as amended, Art. 158 “any form of
advertising related to the supply of public, State or private medical services is
prohibited.”
7. Topic:
When:
What happened:
Alpha Housing – Cadou de casa noua [Gift for New House]
March 2007
NAC requested TV stations to stop broadcasting the commercials included in
“Alpha Housing – Cadou de casa noua [Gift for New House]” spot regarding the
receipt of a gift of EUR 20,000 upon the purchase of a house through “Alpha
Housing”.
NAC, in its public session of 8 March 2007, analyzed the commercial for Alpha
Housing – Cadou de casa noua [Gift for New House], and decided that such spot
breached the provisions of Audiovisual Law No. 504/2002, as amended, Art. 3,
para. (2) and the legal provisions regarding the advertising broadcasting regime
stipulated by NAC Decision No. 187/2006 regarding the Audiovisual Contents
Regulation Code, as amended, Art. 114, para. (1), letter d) . Therefore, NAC
requested that the law be immediately observed, i.e. that the information
provided to the public through the commercial be compliant with the information
included in the promotion’s development regulation.
The commercial “Alpha Housing – Cadou de casă nouă [Gift for New House]”
was illustrated with images of a penguin colony and was broadcast with the
following contents: “Take a house through Alpha Bank, and you take everything
home. Everything it requires, our gift for a new house. Until April 15th you enjoy
all opportunities with Alpha Housing, new house and twenty thousand Euro to
equip it as you like. Alpha Bank, we grow together.”
The following message was displayed at the end of the commercial: “Alpha
Housing/EUR 20,000/Gift for new House*”, and at the bottom of the image, the
following message was displayed in smaller characters: “Promotion valid until 15
April. The performance regulation is available free of charge at
www.alphabank.ro and in ALPHA BANK branches/we grow together/ at
www.alphabank.ro Telverde 08008 (alpha) 08008 25742 free of charge
telephone line.”
NAC established that both the contents of the commercial, and its mode of
presentation misinform the viewing public because it misleads the public into
believing that any person who purchases a house through “Alpha Housing” shall
receive from Alpha Bank EUR 20,000 to equip his/her house.
Comment:
In fact, the information provided to the public is inaccurate and misleading,
because the conditions provided in the regulation of the promotion, available on
the official site of Alpha Bank, www.alphabank.ro, which site is specified at the
end of the commercial, actually reveal that the amount of EUR 20,000
represents a prize which is granted to only one person throughout one
competition, and in no way to all persons who purchase a house through “Alpha
Housing”.
According to the provisions of Audiovisual Law, Art. 3, para. (2) “all radio
broadcasters shall have the obligation to ensure the objective information of the
public through the accurate presentation of facts and events and to favor the free
formation of opinions.”
According to the provisions of the Audiovisual Code, Art. 114, para. (1), letter d),
„the information presented in the commercials or teleshopping transmission
should not mislead the public, either directly, or through omission with regard to
the conditions in which the products are distributed or services are supplied.”
8. Topic:
When:
What happened:
Principal
March 2007
NAC requested TV stations to stop broadcasting the commercials included in
“Principal! Mezeluri din porc, vita sau pui. Niciodata din taur! [Principal! Pork,
beef or chicken salami and sausages. Never bull!”] regarding salami and
sausages pertaining to Principal trademark.
NAC, in its public session of 15 March 2007, analyzed the commercial for
“Principal! Mezeluri din porc, vita sau pui. Niciodata din taur! [Principal! |Pork,
beef pr chicken salami and sausages. Never bull!]”, and decided that such
commercial breached the provisions of NAC Decision No. 187/2006, regarding
the Audiovisual Contents Regulation Code, as amended, Arts. 107 and 110 .
Therefore, NAC requested that the law be immediately observed, i.e. the
commercial should not include the expression “never bull.”
The commercial “Principal! Mezeluri din porc, vita sau pui. Niciodata din taur!
[Principal! Pork, beef or chicken salami and sausages. Never bull!]” fails to serve
the interests of the public to whom it addresses, because the promotion it makes
to “Principal” salami and sausages is misleading, as follows:
a. "Principal" salami and sausages, as compared to other salami and sausages,
are good for consumption because they do not contain bull meat, as if such kind
of meat had been bad for health.
b. the other salami and sausages, in whose composition a consumer would find
bull meat on the label, would not allegedly be as good for consumption as the
salami and sausages in which such kind of meat is not to be found, such as the
“Principal” salami and sausages.
Letter No. 30/21 February 2007 sent to NAC by the Romanian Meat Association
(RMA) reveals on the one hand, that the consumption of such meat is not
restricted in any way and that such meat presents no inconvenient related to
smell, taste, etc., and, on the other hand, that the meat operators may not
physically identify bull meat, the raw material being generically defined as “beef”.
Comment:
Under such circumstances, not only isn't such a comparison possible, but even
in the case of “Principal” salami and sausages it would be hard to establish
whether the producing company may make an accurate and unequivocal
distinction between the types of meat pertaining to such category and found in
the composition of such products.
According to the provisions of the Audiovisual Code, Art. 107, “advertising and
teleshopping shall observe the rules of a fair and transparent competition, which
has to serve primarily the interests of the public.”
According to the provisions of the same piece of legislation, Art. 110,
"comparative advertising is possible only if it observes the provisions of Law No.
148/2000 regarding advertising, as amended."
SOUTH AFRICA
Chris Job
Kelly Thompson
Linda Serrurier
Adams & Adams
chris@adamsadams.co.za
kelly-t@adamsadams.co.za
lindie-s@adamsadams.co.za
www.adamsadams.co.za
1. Self-regulation:
Topics:
Who:
When:
Where:
What happened:
Irresponsible commercial making fun of a political icon
Clause 1.2 of Section I (Responsibility to the consumer); Clause 1 of Section II
(Offensive advertising); and Clause 14 of Section II (Children) of the Code of
Advertising Practice of the Advertising Standards Authority of South Africa.
ASA Directorate
March 2007
South Africa
Two consumers lodged complaints against a Virgin Mobile television
commercial promoting the Virgin Money MasterCard.
The commercial features a realistic depiction of the late President Kennedy at
a podium making a “speech” about the benefits of the advertised product.
At the end of the commercial a female voice states: “We don’t discriminate,
because at Virgin Money everyone gets the same benefits, no matter what the
colour of your credit card. Virgin Money, where everyone is in on the deal”.
The wording “No discrimination based on the colour of your card” appears onscreen.
The consumers complained that the commercial is offensive and irresponsible,
as it makes fun of a political icon and is not a good influence on children and
the population at large.
In deciding the matter, the ASA Directorate recognised that Virgin Money’s
advertising campaign uses icons, who are known for their activism and
strongly-principled stand.
The Directorate accepted the respondent’s submission that the parodies are
clearly intended to be humorous. The Directorate therefore ruled that the
commercial was not offensive, and did not make a mockery of any of the
principles of society.
As far as the complaint regarding children was concerned, the Directorate held
that the commercial does not contain any statements which could be harmful
to children in any way, and the complaint in this regard was dismissed.
The commercial was also not held to be irresponsible.
In essence, the ASA Directorate could find no fault with the advertising in
question.
2. Self-regulation:
Topics:
Who:
When:
Where:
What happened:
Misleading advertising
Clause 4.2.1 of Section II (Misleading advertising); Clause 4.2.2 of Section II
(Puffery); and Clause 4.2.3 of Section II (Hyperbole) of the Code of
Advertising Practice of the Advertising Standards Authority of South Africa.
ASA Directorate
January 2007
South Africa
Brandhouse lodged a competitor complaint against billboard advertising for
Pernod Ricard’s Chivas Regal whisky.
The billboard stated “Judged Coolest Brand 2006*”. The asterisk referenced
www.superbrands.com/uk/.
The complainant submitted that the above claim is misleading, as the survey
referenced by the respondent was for brands in the UK, and that the
respondent’s product was judged as one of over 94 cool brands.
The respondent countered that its product was the only whisky that received
an award and was therefore the coolest whisky brand, and that consumers
would understand this from the billboard.
The Directorate considered whether the claim “Judged Coolest Brand 2006*”
correctly communicated the award.
The Directorate accepted that the brand appeared to be the only whisky that
received the award, and is therefore probably the coolest whisky in Britain for
the relevant period.
The Directorate ruled, however, that the communication on the billboard goes
beyond this and implies that the brand is the coolest brand overall, which is
not substantiated.
The Directorate also ruled that the claim was not sufficiently qualified in terms
of location, as consumers would have to visit the website for full information on
the award, and not all consumers would have the ability or inclination to do so.
The Directorate therefore ruled that the claim is misleading in its current
context, and therefore ordered the respondent to withdraw the billboard.
3. Self-regulation:
Topics:
Who:
When:
Where:
What happened:
Misleading and unsubstantiated advertising
Clause 4.1 of Section II (Substantiation) and Clause 4.2.1 of Section II
(Misleading claims) of the Code of Advertising Practice of the Advertising
Standards Authority of South Africa.
Final Appeal Committee of the ASA
January 2007
South Africa
Enterprise Foods lodged a competitor complaint with the ASA Directorate
against packaging and print advertising for Eskort’s processed meat products.
Eskort sells a range of processed meat in conjunction with Weigh-Less (a
well-known weight loss plan in South Africa) on which the words “Weigh-Less”
appear in white lettering with a green background and in a bolder font
underneath these words appear the words “Best for You”. At the bottom of the
packaging in white writing are the words “Used in conjunction with the WeighLess eating plan”.
The complaint went through the appeal process and finally came before the
Final Appeal Committee.
The complaint, essentially, was that the words “Best for You” were not
expressed as a mere opinion or as puffery, but rather as a statement of fact.
Enterprise thus submitted that the claim should be substantiated.
In deciding the matter, the ASA Final Appeal Committee, stated that in casu
the claim “Best for You” is made to a reasonable reader and consumer in the
context of Weigh-Less being the leader in nutritional guidance, and Eskort is
“partnering” Weigh-Less.
According to the Final Appeal Committee, the hypothetical reasonable person
would understand and appreciate that a Weigh-Less endorsed product is
nutritionally best for him.
The Final Appeal Committee consequently concluded that the Eskort “Best for
You” advertisements, read as a whole, contain an objective statement which
the reasonable reader would understand literally to mean best nutritionally.
This statement therefore had to be substantiated.
Eskort did not provide adequate substantiation and the original complaint was
therefore successful.
SPAIN
Gerhard W. Volz
Schiller Abogados
gwvolz@schillerabogados.es
www.schillerabogados.com
1. Topic:
When:
Who:
Where:
What Happened:
Self comittment “No advertising of giant meals”
December 2006
Ministry of Health (AESA) and the Spanish Federation of Chains of Modern
Restaurants (Fehrcarem)/ Burger King
Spain
At the end of October 2006, Burger King started an advertising campaign for
his giant XXL burger which contained 971 calories and 25 gram of saturated
fat each. This infringes the agreement signed in 2005 by the Spanish Health
Ministry (AESA) and the Spanish Federation of Chains of Modern Restaurants
(Fehrcarem) about not advertising enormous food portions to avoid obesity.
Fehrcarem represents 29 of the fast food companies in Spain who own 5000
restaurants, 400 of them belong to Burger King. The AESA reported the
offence to the Health Commission of the Chamber of deputies but Burger King
nevertheless lanced two more advertisements for their XXL burgers one of
them with the title “Eat like a man”.
Comment:
2. Topic:
Dispute:
When:
Where:
What Happened:
Meetings between Burger King and Fehrcarem were not successful and
Burger King only stopped their campaign on December 15th. As a result of the
infringement AESA resigned from the agreement with Fehrcarem. On
February 13, 2007 Burger King now has left Fehrcarem.
In spite of the trouble with the Health Ministry the advertising campaign
promoting the huge portions was successful as Burger King was able to
augment their sales considerably in Spain (12.7 % in 2006).
Discrimination of Women in Advertising
Labour Ministry and the Women Institute vs. Dolce & Gabbana
February 2007
Spain
Dolce & Gabbana started their last advertising campaign with pictures that
aroused attention because of its violent and sexual attitude. The picture most
critiqued shows a woman with a very short and tight dress lying on the floor
who is held down on her wrist by a male model (Stefano Gabbana himself!)
without shirt while 4 other male models are watching intensively.
The responsible organisation of the Spanish Ministry of Labour and Social
estimates the picture to arouse sexual violence and could be understood as if
”the use of violence as a medium of subduing women was acceptable”.
Comment:
3. Topic:
Who:
When:
Legislation:
Where:
What Happened:
As a consequence the Women Institute asked Dolce & Gabbana to recall their
campaign. Under the increasing pressure, also from the Italian trade union
CGIL , who announced a strike on the 8th of march- the day of the women- ,
Italian parliamentarians and Amnesty International, Dolce & Gabbana drew
back their campaign, first in Spain, later in Italy and other countries.
The protest against the advertising campaign of Dolce & Gabbana is not a
single case in Spain, in 2005 more than 400 charges were filed against 181
advertisement campaigns because of sexism. As a general recommendation
publicity in Spain should avoid to show sexists scenes, naked bodies and
especially women’s nipples, as it is considered as a violation of the honour of
women.
Protection of Minors
Autocontrol vs. Divucsa Music S.A.U (“Los Pitufos”)
January 2007
Code Of Conduct issued by the Self – Regulatory Organisation Autocontrol
and the Law of Television Activities
Spain
The complaint is directed at two advertisements on television for the CD+CD
ROM of “Los Pitufos”.
The first advertisement shows various scenes with the members of “Los
Pitufos” while a voice in the off says: “Success of Pitufos. The new CD of the
Pitufos with all the success of the moment. And 7 games to have a great
time”, while pictures of the 7 games are interposed. The advertisement ends
with a picture of the CD and the CD ROM and the expression “Order it and
you won’t miss it”.
The second announcement is like the first one but the final text is reduced to
the demand “Order it!”.
Comment:
4. Topic:
Who:
When:
Legislation:
Where:
What Happened:
The 5th juror board decided that the advertisement represents an infringement
against the Code of Conduct as well as the Law of Television Activities which
says that “The publicity shown on TV must not incite directly minors to buy a
product or a service exploiting their inexperience and credulity, nor to
persuade their parents to buy it for them”. The demand “Order it!” is directed to
minors to buy the product of the promotion the CD+CD ROM of “los Pitufos”.
The publicity on television must not incite the purchase of a product or service
of minors exploiting their inexperience or credulity.
Beer advertisement (Cerveza Estrella de Galicia) before 8:30 p.m.
User association of communication vs. Hijos de Rivera, S.A.
18017
2006
Code Of Conduct issued by the Self – Regulatory Organisation Autocontrol
Spain
A commercial consisting in a beer advertisement of the brand “Estrella de
Galicia” for which Hijos de Riviera is responsible has been shown on the
Galician television channel at 3:45 p.m.
Hijos de Riviera is a member of the brewers association “Asociación Sectorial
de Cerverceros de España” who have a rule not to show beer commercials
before 8:30 p.m. local Time.
Although the placing of the commercial at 3:45 p.m. wasn’t the intention of
Hijos de Riviera, but a result of a confusion of the television channel, the
Comment:
5. Topic:
Who:
When:
Legislation:
Where:
What Happened:
decision of Autocontrol is still, that Hijos de Riviera are responsible towards
third parties, as it is considered the responsibility of the author of a commercial
to observe the rules, in this case to avoid the emission of their commercial
outside the respected time.
If you oblige yourself to accomplish certain criteria voluntarily in Spain you
have to do everything to observe the compliance of this rule, as you will be
held responsible against third parties.
Misleading Advertising
Third Party vs. Viajes Crisol, S.A.
January 2007
Code Of Conduct issued by the Self – Regulatory Organisation Autocontrol
Spain
The 28th of January 2007 a third party presented reclamation against the
company Viajes Crisol, S.A. because of the misleading of their commercial.
The commercial consists in an announcement of a travel offer, saying “Caribe
2007 2*1, second person for free, make your reservation to enjoy summer”. In
continuation “Punta Cana, Playa Bárbero, Hotel 5*, 9 dias/ 7 noches todo
incluido, first person 1298,- Euro, 2 person free”. In the centre stands “Make
your reservation now to enjoy summer” and on the left “Promotion valid for
reservations before 28.02.2009”.
When the third party called Viajes Crisol, he was informed that this price was
just a “Last Minute Offer” valid for January.
From the understanding of the third party “reserve to enjoy summer” clearly
means the reservation corresponds to the summer months. Viajes Crisol,
which is no member of Autocontrol, didn’t contest the reclamation.
Comment:
6. Topic:
When::
Who:
Where:
What Happened:
Autocontrol estimates the commercial as an offence of Art. 14 of the Public
Conduct Code, that implies that “Publicity must not be misleading”.
Commercials are considered misleading if his presentation or inaccuracy of
his substantial facts, ambiguity, omission or other circumstance evokes or is
likely to evoke an error of the consumer. In the present case Autocontrol has
decided that the commercial is clearly misleading as it seems to refer to travel
in the summer time, while it is only valid for Last Minute Offers in January.
Viajes Crisol is required to revoke the commercial.
As Viajes Crisol S.A. is no member of Autocontrol the decision is not binding
and only presents a mere opinion. Nevertheless the decisions of Autocontrol
are usually also accomplished by non members, probably because of moral
force in combination with fears of image damages.
Perceptibility of prices
December 2006
User Association of Communication vs. Petardos BCM, S.L.
Spain
The User Association of Comunication formed a file against Petardos BCM,
S.L for handing out fliers with 6 maps showing the situation of their shops in
Madrid. The maps are accompanied by the following text: “Prices, text and
pictures are only valid until 15th of may 2007, except for errors in fabrication,
confection or impression”. The second part contains a limitation of the main
offer according to the Jurors of AUTOCONTROL and impedes the customer to
determine in an objective way the range of the offer.
The expectations of customer could be betrayed by the term in the
advertisement, if he comes to the shop to buy something and realises that the
prices differ from the publicity. From the point of the Jurors a concrete
definition of the price which is one of the most important elements of an offer
is not possible for the customers.
Comment:
The Self-Regulation Board therefore held that Rule 4 of the Code of Conduct
is infringed by the advert. According Rule 4 publicity must never be a medium
to abuse the good faith of the customer.
The prices of products in publicity in Spain must always be clearly defined to
not provoke false expectation of the customers.
SWEDEN
Michael Plogell
Wistrand Advokatbyrå
michael.plogell@wistrand.se
www.wistrand.se
1. Case Report
Topic:
Parties:
Where:
When:
What Happened:
Marketing of recordable CDs and DVDs
COPYSWEDE (plaintiff) ./. GNT Sweden (respondent)
Market Court, Case MD 2006:29
November 14, 2006
COPYSWEDE is an umbrella organization owned by 14 members. The
members of COPYSWEDE are organizations that represent authors or practicing
artists.
GNT is a volume distributor of products and services within the IT, entertainment
and home electronic sector. GNT markets and sells amongst other things
recordable CDs and DVDs. GNT has offered certain distributors to sell a certain
type of recordable CDs and DVDs at a favourable price stating that the price
included “COPYSWEDE tax”. “COPYSWEDE tax” refers to the so called
cassette compensations which is regulated by law (Act 1960:729) and whose
aim is to compensate authors, artists and IPR owners for the legal copying for
private use.
The fact that the cassette compensation was not included in the price and never
paid by GNT was not an issue which was disputed in the case.
The Market Court held that as the offers made to GNT’s distributors were made
for purpose of marketing of the recordable CDs and DVDs. According to the
Marketing Act (1970:414) marketing must be made in accordance with good
marketing customs and it has to be due and truthful. Marketing may not be
misleading particularly in relation to the price of the product, the grounds on
which the product’s price is determined and the conditions for payment for the
product.
When making an assessment of whether marketing has been made in a truthful
and not misleading manner, conclusive is how it appears to the target group. The
Market Court held that the marketing standards must be fulfilled even if
marketing is aimed at a target group that comprises of qualified consumers, such
as distributors. Qualified consumers should be able to rely on marketing in the
same manner as the average consumer.
Comments:
Furthermore, the Market Court did not accept GNT defence that it was of the
belief that the cassette compensation had already been paid when they received
the recordable CDs and DVDs. GNT should have had investigated further and
made sure that such compensation had been paid before marketing the
recordable CDs and DVDs stating that the price included cassette
compensation.
This case indicates the far-reaching obligation on marketers to market in a
truthful and not misleading manner. He who uses a statement for a marketing
purpose must be able to confirm the reliability of the statement.
2. Case Report
Topic:
Parties:
Where:
When:
What Happened:
Marketing of position finder products for dogs
Pointer Jakt AB (plaintiff) ./. Tracker Oy (respondent)
Market Court, Case MD 2006:31
November 16, 2006
Both the plaintiff and the respondent are marketing position finder products for
dogs. Position finder products for dogs are basically radars which enable the
owner of a dog to locate the dog in a terrain. The dog is equipped with a
necklace containing a sender and the owner of the dog is equipped with a
receiver.
The respondent marketed a new position finder product for dogs in a full page
advertisement in a hunting journal. The advertisement contained the statements;
1.
“Tracker Bird position finder for bird dogs with over 10 years of
experience”;
2.
“the position finder greatly renowned amongst bird hunters”; and
3.
“Adjustable indicator”.
According to the Marketing Act (1970:414) marketing must be made in
accordance with good marketing customs and it has to be due and truthful.
Marketing may not be misleading. He who uses a statement for a marketing
purpose must be able to confirm the reliability of the statement.
The Market Court held in relation to the first statement, that it was not clear form
the advertisement that the 10 year long experience related to the company
rather than the specific product. The Market Court found this statement to be
misleading.
The Market Court held in relation to the second statement, that as the second
statement was placed directly after the name of the new position finder product it
referred to the specifically marketed product rather than the respondents range
of products for bird hunters. The respondent did not satisfy during the
proceedings the truthfulness of the statement that the marketed position finder
for dogs was greatly renowned amongst bird hunters. Thus, this statement was
found to be misleading.
Comments:
3. Case Report
Topic:
Parties:
Where:
When:
What Happened:
The Market Court held in relation to the third statement, that the marketed
position finder contained a motion sensor. Most position finder products are
equipped with a motion sensor. A motion sensor is not the same as an alarm
device specifically construed for bird hunting. Thus, this statement was also
found to be misleading.
This case indicates the far-reaching obligation on marketers to market in a
truthful and not misleading manner. He who uses a statement for a marketing
purpose must be able to confirm the reliability of the statement.
Marketing of databases
JP Infonet Förlag AB (plaintiff) ./. Infosoc rättsdata AB (respondent).
Market Court, Case MD 2006:33
December 6, 2006
The plaintiff and the respondent are competitors supplying through the Internet
database services containing, amongst other things, information and news in the
field of law relating to social welfare.
The respondent sent two messages by e-mail to 500 recipients containing
marketing statements based on a comparison made between the products and
services supplied by the plaintiff and the respondent. The messages contained
certain statements indicating the superiority of the products and services
supplied by the respondent.
According to the Marketing Act (1970:414) marketing must be made in
accordance with good marketing customs and it has to be due and truthful.
Marketing may not be misleading.
When marketing is based or contains a comparison between competing products
the requirement for reliability and truthfulness is particularly high. The Market
Court has in its case law stated that a comparison between competing products
must be representative of the products supplied by the competitors and that the
choice of products which are compared must be fair.
Furthermore, the information which the comparison is based on must be current
and any differences that may appear between the products may not be overly
dramatized. It is of essence that such a comparison gives a correct and
complete picture.
Comments:
The Market Court held that the marketing containing the comparison was
misleading as it did not fulfil the requirement of giving a correct and complete
picture. The marketing messages that were e-mailed only contained information
stemming from the comparison which was beneficial to the respondent. This had
the effect of wrongfully emphasising the superiority of the respondent’s products
and services.
This case indicates the far-reaching obligation on marketers to market in a
truthful and not misleading manner. The obligation to market in a truthful and not
misleading manner becomes greater and the requirements become stricter when
marketing contains a comparison between competing products.
SWITZERLAND
Peter Hofer
Frick Hofer Hunziker
peterhofer@rabenhaus.ch
www.rechtsanwaelte-rabenhaus.ch
1. Jurisdiction
Topic:
Who:
When:
Published:
What happened:
2. Jurisdiction
Topic:
Who:
When:
Published:
What happened:
3. Jurisdiction
Topic:
Who:
When:
Published:
What happened:
Advertising / Commercial law
Swiss Federal Court
June 23, 2006
SIC 2/2007 page 126 ff.
This decision of the Swiss Federal Court refers to the criteria after which the
advertisement for pharmaceutical products, in this case for a pain reliever is
admissible. The advertisement for pharmaceutical products only available by
prescription is not only restricted by the prohibition of deceiving advertisement,
furthermore it has to be in accordance with the approved official information
regarding this product. The advertisement for the pain reliever “Dolo-Spedifen
400” contained sentences such as: “..the pain is already gone!”, “because every
minute counts”, “soothes the pain already within a few minutes” and “…liberates
you from pain entirely within 30 minutes”. The Federal Court came to the
conclusion that these explicit messages did not correspond with the official and
approved information for this pain reliever, which did not contain any specific
information regarding the extent and the point of time of its effect. The
advertisement was therefore regarded as contradictory to the official information
for the medicament and furthermore as illegitimate exaggeration.
Protection of existing trade mark refused
Eidgenössische Rekurskommission für geistiges Eigentum
(Federal commission of recourse in the matter of intellectual property)
August 31, 2006
SIC 1/2007 page 4
The owner of the Swiss trade mark “okay” claimed against the registration of the
identical trademark “okay”. Both trade marks were destined for the
commercialization of medias. A trade mark must be used to a certain extent to
conserve the right of protection (“right-maintaining use”), which means minimal
market cultivation within 5 years. In the present case, the owner of the existing
trade mark had launched a soccer magazine named “okay”. Even so, the owner
of this trade mark could not prove that after the first print run in 2004, any more
print runs have followed. Thus, the Eidgenössische Rekurskommission came to
the conclusion, that in the period of 5 years after its registration, neither the trade
mark has been used regularly nor had it had a noteworthy frequency of runs. As
a consequence, the sufficient and “right-maintaining” use could not be affirmed
and the trade mark could not be protected.
Misleading trade mark
Swiss Federal Court
September 8, 2006
SIC 3/2007 page 204 ff.
A trade mark is according to the Swiss law regarded as misleading, if it contains
or consists of a geographical designation and wrongly suggests that the product
belonging to the trade mark has been produced at a specific location. Such a
trade mark can only be registered, if it is true (i.e. the caused impression is true)
or if the geographic designation is evident to be a fantasy name resp. trade
mark. The decisive criteria regarding the misleading character of the trade mark
is, if the trade mark evocates directly or indirectly a specific idea regarding the
location or country of provenience / production.
The present case is about the registration of the trade mark “Colorado” which
was intended to be used for products sold in Switzerland that have not been
produced in or imported from the United States. This trade mark is according to
the Swiss Federal Court misleading, as it causes the impression, that the
products had been produced in Colorado, United States. This impression is
being enforced by the picture of a mountain landscape as a part of the trade
mark, which could be associated to the Rocky Mountains, that are quite well
known to the Swiss public as a holiday destination. Therefore, this trade mark is
excluded from the trade mark-protection and cannot be registered.
4 Jurisdiction
Topic:
Who:
When:
Published:
What happened:
Similarity of trade marks / Danger of confusion
Eidgenössische Rekurskommission für geistiges Eigentum
(Federal commission of recourse in the matter of intellectual property)
July 5, 2006
SIC 11/2006 page 761 ff.
According to the Swiss law, trade marks cannot be protected, if they are similar
to an already existent trade mark for identical or congeneric products or services.
The similarity of trade marks is defined by the phonetic impression, the visual
impression and contingently the signification of the word resp. the trade mark. If
one of these defining aspects can be affirmed, the trade mark is considered to
be similar and will not be protected.
In the present case, the Eidgenössische Rekurskommission had to judge the
similarity of the Swiss trade mark “Mc Lake” and the trade mark “McDonald’s” on
the one hand and of the trade marks “Mc Lake” and “Fish Mac” on the other
hand.
In respect of the trade mark “McDonalds”, according to the appeal commission
the prefix “Mc” does not cause a specific association to the trade mark
“McDonalds” as it is well known to be a part of Scottish family names and thus
used within many different areas (for example politics, economics, sports,
entertainment, etc). The phonetic and visual similarity is to be denied as well.
As far as the alleged similarity of “Mc Lake” and “Fish Mac” is concerned the
Eidgenössische Rekurskommission denied the similarity of the trade marks
regarding their phonetic and visual impression. Furthermore, a similarity in
respect of the signification of the word “fish” can be excluded for the fact that the
word “fish” is a declaration of an object and therefore a common property.
5. Jurisdiction
Topic:
Who:
When:
Published:
What happened:
Prohibition of spam / revision of article 3 UWG (Swiss law against unfair
competition) and of article 45 a FMG (Swiss law of telecommunications)
Swiss Federal Council
April 1, 2007
Corpus juris
The revised articles 3 UWG and 45a FMG entered into force as from the first of
April 2007. As a measure to protect involuntary recipients or transmitters, mass
advertising (spam) is prohibited categorically. According to this revisions,
automatically generated mass advertising via e-mail, fax, answering machine,
sms or mms is legal only on condition that the recipient has agreed explicitly to
this advertising (opt-in). Commercial mailing of spam can be penalized by a fine
or imprisonment.
A corresponding resp. non-literal translation of the new art. 3 UWG would be:
As unfair competition is regarded:
Sending unsolicited mass advertising by means of telecommunications without
having asked in advance for the agreement of the recipient, without having
informed in advance about the correct address of the sender, or without having
indicated in advance the recipients possibility to decline the advertising free of
charge. The sending of unsolicited mass advertising is not regarded as unfair
competition in case the recipient is a former client of the sender who therefore
already has the recipients contact details and if the advertising is referring to
similar products or services of the sender.
TURKEY
Bilge Saltan
Mehmet Gün & Partners
bilge.saltan@gun.av.tr
www.gun.av.tr
1. Case Report
Authority:
Topic:
Who:
When:
Where:
The Facts:
Decision:
2. Case Report
Authority:
Topic:
Who:
When:
Where:
The Facts:
Decision:
3. Case Report
Authority:
Topic:
Who:
When:
Where:
The Facts:
Decision:
The Advertising Board decision no: 2007/129
Advertisements in Food Sector infringing the principles of fair competition
Unilever San. Vs. Tic. Türk A.Ş (Algida)
13.02.2007
Turkey
The advertisement is bearing the statement “Now with the new Amaze the
brain’s nutrient, kids are avid to answer the questions. Because Amaze has
the genius formula containing DHA, Iron and İodine resulting from the cod
fish oil. Delicious Amaze genius cubicles. Feed your child’s brain everyday
with Amaze. From Algida”.
The Advertising Board held that the product’s advertisement claims being
beneficial to child’s intellectual development thus infringes the principles of
the 5179 numbered Act on the Production Consumption and Detection of
Nutrients and the Turkish Food Codex Communiqué on the General and
Nourishment Side Labeling Rules. The Board ordered the advertisements to
be preliminarily halted for tree months.
The Advertising Board decision no: 2006/84
Advertisement contrary to the cosmetics legislation
Micro-Gen İlaç San. vs. Tic. Ltd. Şti.
09.01.2007
Turkey
The company made an advertisement for its new product “Revigen Hair
Tonic” bearing a clever “double entendre” statement on the one side
meaning “Seduces your hair!” but on the other side meaning “grows your
hair back!”. The Board took the latter meaning into consideration and
demanded the argument to be proved. But according to the Ministry of
Health’s opinion, the advertiser’s argument was not proved by the
submitted documents.
The Advertising Board held that the said advertisement is contrary
to Article 16 of the Consumer Protection Law and ordered the
advertiser to pay fines and the commercials to be stopped.
The Advertising Board decision no: 2007/128
Advertisement about banking services
Türk Ekonomi Bankası A.Ş
13.02.2007
Turkey
The firm ran an advertisement series titled “care about things more
important than money”. In one of the series two doctors are talking about
money problems standing by the patient.
The Advertising Board decided that with the money issued dialogs
passing between the two doctors, medical men serving in the field of
human health were exploited for the commercial and humiliated;
held that the advertisement violated Article 16 of the Consumer
Protection Law; and ordered the advertisement to be preliminarily
halted for tree months.
4. Case Report
Authority:
Topic:
Who:
When:
Where:
The Facts:
Decision:
5. Case Report
Authority:
Topic:
Who:
When:
Where:
The Facts:
Decision:
The Advertising Board decision no: 2006/305
Misleading campaign in the food sector
Anadolu Restoran İşletmeleri Ltd. Şti (“McDonald’s”)
13.02.2007
Turkey
The firm’s advertisement brochures - displayed inside the McDonald’s branch
restaurants - on the firm’s “Narnia Campaign” were promising to give one
character of the “Narnia” toy series to everyone purchasing the “Happy Meal”
menu.
But it was established by the Advertising Board that with reasons like stock
deficiency and the products unavailability the promised gifts were not given
or different gifts than the promised ones have been tried to be given instead.
Therefore, the Board held that the advertisements violated Article 16
of the Consumer Protection Law and ordered Mc Donald’s to pay
fines and the commercials to be halted.
The Advertising Board decision no: 2006/375
Counterfeit Advertisement
Yalova Laminat Sanayi Tic. Ltd. Şti
12.12.2006
Turkey
The firm's product brochure contained a picture similar to the one used for
a competitor’s (İstikbal Mobilya) product named “İstikbal Regina Kitchen”.
The Advertising Board held that the said picture was used
identically in a way to contradict the 16th Article of the “Regulation
Pertaining to the Principles and Pertaining Rules on the Ads and
Commercials” and ordered the commercial to be stopped.
UNITED KINGDOM
Brinsley Dresden
Lewis Silkin LLP
brinsley.dresden@lewissilkin.com
www.lewissilkin.com
1. Topic:
Introduction:
New Rules for Food Advertising to Children in the UK
In April 2007, the advertising regulators for both broadcast and non-broadcast
advertising in the United Kingdom completed the process of introducing new
rules for food advertising to children.
The Office of Communications (Ofcom) acted first by introducing new rules for
both the content of the food advertising and also the scheduling of advertising
for foods high in fat, salt or sugar (“HFSS” foods). Since then, the Committee
of Advertising Practice (“CAP”), the Self-Regulatory Organisation which
governs non-broadcast advertising in the UK, has brought out rules to govern
the content of food advertising to children in non-broadcast media, such as the
print, press, poster and cinema. The content rules for broadcast and nonbroadcast media are very similar, although CAP does not differentiate
between HFSS foods and other foods, and has not adopted quantitative
restrictions.
What is an HFSS
food?
What do the new
content rules
require?:
These moves follow research conducted by Ofcom, at the prompting of the
Government, into the role that television advertising plays in influencing
children’s consumption of HFSS food. Ofcom concluded that television
advertising has a modest direct effect on children’s choices, together with a
larger but unquantifiable indirect effect on their preferences, consumption and
behaviour. Ofcom also recognised that as there are multiple factors that
cause childhood obesity, a total ban on food advertising on television would
not be effective in combating the problem, nor would it be a proportionate
response.
One of the main criticisms of the new regime is that Ofcom has chosen to
adopt the Nutrient Profiling (“NP”) scheme launched by the Foods Standards
Agency to define HFSS foods. Many commentators have expressed concern
about the reliability of the NP scheme. They point to specific examples of
foods intended to be consumed in small quantities which may be high in salt
or fat for example, but which can form part of a healthy, balanced diet for a
child, such as cheese, raisins and breakfast cereals. CAP has expressly
stated that the NP system has “serious flaws”, which is a surprisingly unsubtle
criticism of a key plank of the equivalent regime adopted by the broadcast
advertising regulators.
In order to decide whether a particular food is subject to the HFSS regulations,
the Broadcast Advertising Clearance Centre has said that advertisers will have
to produce a “nutritional profiles certificate”. This involves giving a score to a
food depending on the amount of calories, saturated fat, sugar and salt per
100g, as well as the amount of fibre and protein.
The new rules for television advertising came into effect on 22nd February
2007 and any new campaigns will have to comply with those rules.
Transitional provisions allow existing campaigns or campaigns in their final
stages of creative execution at that time to be broadcast until 30th June 2007.
As from 1st July, the new content rules will apply to both all television
advertisements for HFSS foods and all non-broadcast advertisements.
The content rules apply to all advertising of food and drink products to all
children at any time of day. They also include rules which are directed
specifically to pre-school or primary school children (i.e. those aged 10 or
under).
Diet and Lifestyle
Advertisements must avoid anything that is likely to encourage poor nutritional
habits or an unhealthy lifestyle in children. This means that food should only
be shown being eaten in moderation and without excessive consumption.
Frequent eating between meals or immediately before going to bed should be
avoided. Encouraging attitudes associated with poor diet, such as a dislike of
green vegetables, should also be avoided. Advertisements must also avoid
encouraging excessive consumption. For example, portion sizes should be
shown responsibly and with relevance to the scene depicted. Advertisements
should also avoid suggesting that an inactive or sedentary lifestyle is
preferable to physical activity.
Pressure to Purchase
Children should not be encouraged to ask their parents to buy food or drink,
nor to use pester power. Advertisements should not create feelings that are
either negative, such as disloyalty or inferiority, or positive, such as self
confidence or popularity, by consuming a product or service. If the
advertisement contains reference to a price, this must not be minimised by the
use of words such as “only” or “just”.
Promotional Offers
Promotional offers must be used responsibly. In addition, they cannot be used
in adverts for HFSS products targeted directly at pre-school or primary school
children. They must avoid creating a sense of urgency or encourage
consumption of excessive quantities. If the “premium” which is the subject of
the promotion can also be purchased for cash, that should be made clear.
Closing dates must be sufficiently long after the launch of the promotion to
avoid creating a sense of urgency.
Use of licensed characters and celebrities
Although licensed characters and celebrities who are popular with the children
can be used in food advertising, this must be done responsibly. Furthermore,
this technique is prohibited in advertisements for HFSS products targeted at
pre-school or primary school children.
Licensed characters mean “borrowed equities” that have no historical
association with the product. In practice, this is likely to apply to characters
from television programmes or feature films made for children, such as
Scooby Doo or Shrek. It does not apply to “advertiser – created equity brand
characters” i.e. puppets, people characters created by the advertiser, such as
Tony the Tiger of Kellogg’s Frosties fame.
Nutritional and Health Claims
There are also content rules applicable to all advertising for food and dietary
supplements to both adults and children. Nutritional claims must not be
misleading and should be relevant to the groups addressed by the
advertisements. No nutritional or health claim may be used in HFSS
advertising directed at pre-school or primary school children. No
advertisement can encourage excessive consumption of any food and must
not disparage good dietary practice or good healthcare practice.
Advertisements for dietary supplements cannot suggest that they are
necessary for the average person in order to augment their diet and must
clearly establish the groups of people likely to benefit from them.
Scheduling
restrictions:
The scheduling restrictions for television advertising are being brought into
force in two stages with a third separate arrangement for children’s channels.
Programming for the Under 9’s: From 1st April 2007
From 1st April 2007, HFSS advertisements will not be permitted in or around
programmes made for children or which are likely to be of appeal to children
aged under 9.
Programming for all children under 16: From 1st January 2008
The prohibition will then be extended to programmes that are likely appeal to
children aged under 16 from 1st January 2008. This minor derogation has
been implemented because when Ofcom originally consulted on its proposals
they addressed restrictions to the under 9’s rather than the under 16’s.
What programmes
are “of particular
appeal to under
16’s”?
What happens
next?
Subsequently however, Ofcom decided that although primary school children
were the most vulnerable, this did not mean that rules should not also be
applied to older children. Ofcom also believes that there is strong evidence
that exposure to television advertising is associated with obesity in children in
their pre-school, primary school and teenage years. Although media literacy
may increase with age, there is still a modest direct effect on the food
preferences of older children. It was also felt that young children are
influenced by their older siblings, who also have more spending power than
younger children.
Dedicated Children’s Channels: Phased from 1st April 2007 to 1st January
2009
Specialist children’s channels will be able to phase in through restrictions.
Starting from 1st April 2007, they will have to reduce the amount of HFSS
advertising that they show, to 75% of 2005 levels, reducing to 50% on 1st
January 2008 with a complete removal by 1st January 2009.
This question is answered using the statistical analysis of “indexing” which
produces a programme’s “Conversion Index”. If the programme has an index
of 120, this will mean that the proportion of children aged between 4 and 15
watching a particular programme is more than 20% higher than the proportion
of the general population. The programme will therefore be classified as one
which is of particular appeal to the under 16’s. This technique is well
established and broadcasters have historical scheduling data that can be used
for defining these programmes.
In late 2007, the Government is due to review the extent of change to the
nature and balance of food advertising. Ofcom already predicts that the
dedicated children’s channels are likely to lose between £4.6 and £5.9 million
per year, but that a ban on all HFSS advertising before 9pm would have
resulted in the loss of revenue of £250 million per year. This has been
rejected so far, on the basis that it would be untargeted and disproportionate
with damaging effects on the quality of programming.
Following the Government review, in 2008 the FSA is due to review the
operation of its nutrient profiling model once it has been in place for a full year.
Finally, at the end of 2008, Ofcom is to review whether the rules are having
the intended effect reducing the amount of HFSS advertising seen by children
(rather than the impact of the new rules on obesity levels) and also whether
there have been any unintended consequences of the new rules such as a
switch to brand advertising which is not currently prohibited.
Unfortunately, it is perfectly possible that while the ban will have no discernible
effect on the rate of obesity among children, to which advertising is only a
small contributor, it will have a seriously detrimental effect on the production of
high quality programming for children.
UNITED STATES
Douglas J. Wood
Susan Rosenfeld
Christa Kenin
Reed Smith LLP
dwood@reedsmith.com
srosenfeld@reedsmith.com
ckenin@reedsmith.com
www.reedsmith.com
www.adlaw.com
1. Case Report:
Topic:
Where:
When:
What Happened:
Mobile Marketers
Mobile Marketing Directed To Children
US
November 13, 2006
Mobile service providers are required to comply with all applicable laws
dealing with children and marketing such as the Children’s Online Privacy
Protection Act (COPPA), although the laws do not specifically address mobile
marketing. In November of last year, the Mobile Marketing Association (MMA)
released new guidelines which address marketing to children via mobile
phones. The guidelines state that if children are being targeted, content
providers should modify the advertising language to ensure that the ads are
not inappropriate, deceptive or misleading to children. The guidelines further
recommend that industry members “ensure that all programs are marketed in
a manner that complies with existing media specific rules regarding children,
such as day-part restrictions.” [Explain ‘day-part restrictions’]. In addition, the
guidelines recognize that the “offering of programs that engage children in the
promotion/consumption of digital content of any type imposes important ethical
obligations, responsibility, and sensitivity that all industry participants are
expected to uphold.”
The MMA Guidelines were also revised to prohibit providing inducements such
as payments, discounts and free products, to forward commercial messages,
i.e., viral or word-of-mouth marketing. The guidelines also prohibit viral
messages that originate from a commercial source, those that are forwarded
by automatic means and messages forwarded to an Internet domain name
assigned to a wireless operator for mobile messaging service. Any viral
messages that are forwarded by a consumer must be manually forwarded and
must disclose to the recipient that the message was forwarded by another
consumer along with the identity of that consumer.
Comment:
In addition, the Guidelines suggest that carriers place spending cap limits on
promotions that can be ordered via shortcodes. The Guidelines also suggest
that when consumers reach certain caps, they should be offered an additional
opportunity to opt-in to purchase more content.
As mobile marketing becomes a more common advertising medium, mobile
marketers need to be aware of how advertising laws and regulations, such as
COPPA and other laws that regulate marketing to children, may impact the
mobile marketing industry even though the laws did not specifically
contemplate this method of advertising.
2. Case Report:
Topic:
Where:
When:
What Happened:
Comment:
3. Case Report:
Topic:
Where:
When:
What Happened:
Comment:
FTC. v. Commercial Alert
Advertising.com, an America Online Inc. subsidiary, has agreed to settle false
advertising charges concerning a former practice of bundling advertising
software with free giveaways.
US
December 7, 2006
In October 2005, the consumer advocacy group Commercial Alert requested
that the FTC establish new rules regulating “buzz marketing” to require those
engaged in buzz marketing to disclose their relationship to the sponsor of the
products or services being pitched, including whether they are being
compensated.
In December 2006, the FTC responded to Commercial Alert’s letter in which
the FTC advised that it was unnecessary to issue new guidelines at this time,
referring to its existing Endorsement Guidelines. However, the FTC advised
that “…in some word of mouth marketing contexts, it would appear that
consumers may reasonably give more weight to statements that sponsored
consumers make about their opinions or experiences with a product based on
their assumed independences from the marketer.” Within the context of
marketing to children, the FTC noted that children are more vulnerable to
marketing by word of mouth. Therefore, when evaluating any buzz marketing
conducted which involves children, the FTC would consider consumer
expectations from the standpoint of a child.
Although the FTC denied Commercial Alert’s request to issue new guidelines,
pursuant to the regulations set forth in the Endorsement Guidelines, any
connection between an endorse and a sponsor should be disclosed.
Trademark Dilution Act
President Signs Trademark Dilution Law Adopting A Less Stringent Proof
Standard
US Congress
October 6, 2006
On March 4, 2003, the U.S. Supreme Court in Mosely v. Victoria Secret
Catalog held that the 1996 Federal Trademark Dilution Act required the
trademark owner to show that actual dilution had occurred.
In response to the court’s holding, President Bush signed a new law which
only requires that the trademark owner prove that another party’s actions are
likely to cause dilution. The new law also clarifies the meaning of “famous.”
Allowing courts to consider various relevant factors such as the geographical
reach, amount of sales, recognition of the mark and whether the mark has
been federally registered. In addition, the law recognizes the “fair use”
exception which gives a third party the right to use a famous mark within the
context of competitive advertising, parody, news reporting and noncommercial
uses.
As a result of this less stringent standard of proof, it is now easier for the
owner of a famous mark to pursue claims of dilution against third parties
whose uses do not fall within the “fair use” exceptions. The law also provides
the owner of a famous of mark the opportunity to prevent a third party’s
diluting use of its mark as opposed to having to wait until actual damage has
occurred, if such could be proven.
4. Case Report:
Topic:
Where:
What Happened:
Comment:
5. Case Report:
Topic:
Where:
When:
What Happened:
Comment:
6. Case Report:
Topic:
Where:
When:
What Happened:
Policymakers vs. Drug Companies
Direct to Consumer Prescription Drug Advertising
US
Direct-to-Consumer advertising is becoming more and more of a common
means to advertise prescription drugs. The price of prescription drugs is also
rising accordingly. Policymakers are therefore proposing restrictions on DTC
prescription drug advertising. For example, the policymakers are proposing
that the tax deductibility of advertising expenses be limited and that
moratoriums be placed on advertising or that additional warnings be included
on advertising for medications that have been recalled. In July 2006, Senators
Mike Enzi (R-WY) and Ted Kennedy (D-MA) introduced the Enhancing Drug
Safety and Innovation Act of 2006 (S. 3807). The Act includes a provision that
allows the FDA to require drug manufacturers to submit advertisements for
preclearance to the FDA to help the FDA evaluate the potential risks of
adverse reactions from specific drugs already in the marketplace. In addition,
the law allows the FDA to impose a two-year moratorium on advertising for
new prescription drug products. There are various other similar bills pending in
Congress at this time. The Institute of Medicine and the Government
Accountability Office also issued reports which expressed disapproval of the
FDA and other members of the industry who are responsible for approving
and monitoring the safety of drugs.
In light of the multiple bills that are pending before Congress and the reports
issued by regulatory bodies relating to DTC advertising, it is likely that
Congress will address concerns about DTC advertising next year.
Regulation of Internet Gambling
Unlawful Internet Gambling Enforcement Act Signed Into Law
US
October 13, 2006
The Unlawful Internet Gambling Enforcement Act was signed into law on by
President Bush on October 13, 2006. The Act prohibits and criminalizes the
acceptance of funds from bettors by operators of most online gambling
websites. However, the Act does not prohibit or penalize a player’s mere
participation in online wagering. The Act also requires financial institutions to
adopt procedures designed to block the transmission of prohibited funding to
the operators of the relevant online gambling websites. This provision does
not become obligatory, however, until the regulators adopt guidelines or
regulations on how to implement such procedures which must be
accomplished by July 2007.
Although the law does not affect a player’s right to bet online, it does require
that financial institutions take responsibility and prevent electronic transactions
made in connection with online gambling which will inevitably affect the
practices of the online gaming industry.
The US SAFE WEB Act
International Internet Crime Prevention
US Congress
January 16, 2007
President Bush signed into law a bill that gives the Federal Trade Commission
expanded enforcement authority to target cross-border spam, spyware and
Internet fraud practices. The US SAFE WEB Act gives the FTC a lot of the
enforcement tools that federal agencies currently have in fighting Internet
crime, such as the ability to cooperate with international authorities in
investigations and prosecutions of Internet crimes. The most common types
of Internet crime relate to fraudulent spam, spyware, misleading health and
safety advertising, privacy and security breaches and telemarketing fraud.
Comment:
7. Case Report:
Topic:
Where:
When:
What Happened:
Comment:
8. Case Report:
Topic:
Where:
When:
What Happened:
The Act broadens reciprocal information sharing opportunities by allowing the
FTC to share its confidential information with foreign law enforcers when it
comes to solving consumer protection issues and protects any confidential
information given by foreign enforcement authorities to the FTC relating to
such issues. The Act has the ability to indemnify parties who report suspected
fraud and deception violations or provide information that ultimately leads to
consumer redress. The Act commits FTC staff and financial resources to the
US Department of Justice relating to foreign litigation matters. The FTC is
required to report to Congress in 3 years to illustrate the progress of the Act.
Since the Internet is so expansive, increased regulation for the purposes of
crime prevention makes good sense. Increased law enforcement cooperation
will help maintain online consumer confidence.
Regulation of TV Programming
The Impact of Violence on Children
Federal Communication Commission
March 14, 2007
The Federal Communication Commission has requested that Congress give
the FCC authority to control the levels of violence that appear on TV and when
violence appears. The FCC proposes limiting violence on TV in the same
manner that sexual content and profanity are currently limited. Today, the
FCC is allowed to prohibit what it deems to be indecent programming from the
hours of 6 am to 10 pm when children are likely to be watching TV as well as
prohibit obscene material from being aired at anytime. If such monitoring is
permitted by the FCC, the FCC will have to monitor violent programming in a
way that does not infringe on 1st Amendment constitutional rights. The FCC
has submitted a report that cites a study suggesting there is strong evidence
that violence in media can impact children’s behavior. Congress requested
the report two years ago asking specifically whether violent behavior that is
harmful to children could be defined and whether the FCC could regulate
violence in TV programming in a constitutional manner. It is yet to be seen
whether the report will deliver such a definition for violent behavior and
corresponding constitutional regulations.
There is always a delicate balance between increased government regulation
of any communication and 1st Amendment constitutional integrity. If the FCC
obtains their request from Congress, we’re likely to see plenty of challenges
by advertisers and constitutional advocacy groups.
FTC v Kmart
Misrepresentation of Gift Cards
Federal Trade Commission
March 14, 2007
The Federal Trade Commission brought its first law enforcement action
involving gift cards. The FTC’s complaint focused on misrepresentations
made in Kmart’s advertisements claiming that Kmart gift cards never expire
and on the fact that all fees and conditions were not disclosed in Kmart
advertising. The advertising claimed that the gift cards were “as good as
cash” and never expired when in fact, after 24 months Kmart deducted $50
from any inactive gift card and then $2.10 for every inactive month thereafter
until a card gift had no value left. This was established as a “materially false
and misleading claim” under Section 5(a) of the Federal Trade Commission
Act. The FTC asserted that in general fees are permitted for gift cards as long
as such fees are disclosed “clearly and conspicuously”. This has been
interpreted to mean, in advertising, at the point of sale and on a gift card itself.
Kmart only disclosed such fees on the back of its gift cards in small print and
in terms that were not easily understandable to the consumer and the
applicable fees were often not disclosed at the point of sale at the stores and
Comment:
9. Case Report:
Topic:
Where:
When:
What Happened:
Comment:
10. Case Report:
Topic:
Where:
When:
What Happened:
never online. Kmart accepted a settlement whereby Kmart will only advertise
gift cards accompanied by “clear and conspicuous” disclosure of all fees and
expiration dates in understandable terms in advertising and on the front of its
gift cards. Also, Kmart has agreed to “clearly and conspicuously” disclose all
material terms and conditions regarding all fees and expiration dates at the
point of sale before any gift card purchase is made.
Although this case was approved by 5-0 FTC Commissioners, two of the FTC
Commissioners wanted to impose severe financial penalties whereby Kmart
would have to disgorge all its profits relating to the sale of the affected gift
cards. Kmart got off easy this time but gift card purveyors beware.
Children’s Advertising Review Unit’s Self Regulatory Program
Children’s Advertising
National Advertising Review Council
November 14, 2006
The National Advertising Review Council officially revised its guidelines for the
Children’s Advertising Review Unit entitled A Self Regulatory Program for
Children’s Advertising (“Program”). The Program firmed up some of the
NARC’s guiding principles to provide clearer direction for advertisers. One of
the original principles that promoted truthful communication and
understandable language has been clarified to now call for “adequate
substantiation for objective advertising claims so that those claims are
reasonably interpreted by the children to whom the claims are directed.” The
Program also adds a guiding principle that asks for advertising that is “neither
deceptive nor unfair (as these terms are defined under the Federal Trade
Commission Act) to the children to whom the advertising is directed”.
Additionally, the Program asks advertisers to not feature products that are
“excessive or more than would be reasonable to acquire, use or consume by a
person in the situation depicted,” to not discourage or disparage healthy
lifestyle choices or the consumption of fruits, vegetables or other healthy
foods, and to present food and beverage products within the framework of a
balanced diet.
The Program’s application has expansive reach as it applies to all children’s
advertising across all product and service categories and across all media.
Healthy Lifestyle Legislation
Efforts to combat obesity and poor diets in America
US Congress and State Activity
Ongoing
Advocate groups, such as the Center for Science in the Public Interest and the
Institute of Medicine, continue to pressure the food and beverage industry to
limit the types of food that are advertised and politicians are jumping at the
chance to be part of this cause. Senator Tom Harkin (D - IA) introduced the
Child Nutrition Promotion and School Lunch Protection Act (S 771) which
requires the Department of Agriculture to establish guidelines for foods sold in
schools based on their nutritional value. Senator Harkin also procured funding
for an FTC report on food advertising spending to children in all media to
assess the current situation in America through an amendment to the
appropriations bill due in 2007. Meanwhile, State Senator Liz Figueroa
introduced a bill (SB 1118) to impose a tax on food advertisements for foods
of “poor nutritional quality” (yet to be defined) that air between the hours of
7am and 10pm during prime time TV hours. State Assemblyman Felix Ortiz
introduced legislation (AB 6376) to impose a one quarter of one percent
(0.25%) tax on the sale of food and beverage products and a one percent
(1.0%) tax on the sale of any sweet or snack food (to be defined) and on the
sale or rental of any video game or film and any movie theater ticket because
these items promote a sedentary lifestyle which contributes to obesity.
Comment:
This is only the beginning. As the next presidential campaign nears, we
should expect a floodgate of this type of legislation.
VENEZUELA
Ricardo Alberto Antequera
Estudio Antequera Parilli & Rodríguez
ricardoalberto@antequera.com.ve
www.antequera.com.ve
1. Case Report
Topic:
When:
Where:
What Happened:
Restricted Internet for Kids
March 26th, 2007
Venezuela
On September 25, 2006, the Child and Adolescent Protection Law for the
Internet, Videogames and Other Multimedia Use was approved by the National
Congress, and came into force on March, 25 2007. This law establishes
restrictions for Internet use and it was issued in order to protect children and
adolescents’ right to receive adequate information that contributes to their
integral development, by means of restrictions to the Internet use.
In this new legislation, it is established that minors may use Internet in public and
private commercial establishments from 6 am to 7 pm. Likewise, children under
nine years old should use the net under their parents, representatives or
responsible persons supervision.
The Internet rooms must adapt their physical spaces, in such way, that the
workers or people in charge may supervise the minor users. In the same way,
the law forbids the access to information that incites to violence, any way of
discrimination and exploitation, use and consumption of illicit and licit – but
inappropriate - substances and everything that attempt the moral and good
society customs. It is also forbidden the pornography and other material access
to minors.
The Internet rooms would have 30 days to fulfill all the law requirements and
they have to set a poster with the rules, authority names and phones in case of
infringement. This poster has to be in a visible place. Also messages aimed to
divulge this legislation have to be displayed in the computer screen protector.
2. Case Report
Topic:
Where:
What Happened:
Judge sentenced Laureano Márquez – humorist and actor - for an article
issued by TalCual newspaper, addressed to the Mr. President’s daughter
Rosinés.
Venezuela
On January 23, 2006, the District Attorney Office initiated a legal action against
Teodoro Petkoff Malec – TalCual Newspaper Editor - and the humorist and actor
Laureano Marquez. The dispute object was an article issued on November 25,
2005 written by Laureano Marquez, which was addressed to the Mr. President’s
daughter Rosinés Chavez Rodríguez. In the “Dear Rosinés” article, Mr. Marquez
asked the President’s daughter help him to persuade his father not to change a
Venezuelan National Symbol.
According to the complaining party, the article is disrespectful and could be
harmful to the victim, as well as her family relationship. It might induce the girl to
lie and fight her father, violating her family privacy and her right to be in peace.
The complaining part pointed that “Dear Rosinés” attempts the kid’s integrity
which is required for her emotional and physical development.
From the defendant’s perspective, Teodoro Petkoff alleged that the trial is taking
place in a political circumstance because the President announced the change
of the horse direction in the National Symbol due to a commentary made by his
daughter. He claimed that if the President Chavez uses kid’s images to transmit
political messages to the nation and he is not breaking the law, then Laureano
Marquez is not breaking the law either because the equality principle. He
pointed that the aim of that trial was to refrain the speech freedom and the big
possibility that the Diary could broke because a disfavorable sentence. That it
may be the case that facts could be manipulated to highlight the political profile
instead of the legal one.
On the other hand, the article author claimed that the humor has historically
been an expression form that by nature differs from power; it must be considered
as a healthy autocritical mechanism, which is particularly no violent; if it’s true
that his article has a lot of political critics against the President, but it was written
in a mood of tenderness towards the child. He claimed that the political humor
bases itself on public issues that affect the society life; that he personally thinks
that public figures have private life and they deserve our respect, except in the
case that his private experiences could have public consequences. That the
article which he’s sentenced for, it is not related to a private fact, but a public
issue that has public consequences. In relation to the article, he points that it
was not aimed to damage the child’s image, even less her reputation or her
private life. He considers that within the article there are expressions that denote
tenderness towards the girl and that his intention was not to offend or hurt in any
way the child. He’s intention was to highlight an issue that has caught the public
attention.
The Judge concluded that there was an infringement of the LOPNA (Child and
Adolescent Protection Law), reason why Laureano Marquez was sentenced to
pay a ten and a half monthly labor salaries fine as a civil sanction, which must be
paid to the Fondo Nacional de Protección del Niño y del Adolescente
(governmental institute aimed to protect the children and adolescents’s rights)
within the next 10 days after the sentence. He was warned that in the case of no
payment, the fine will have an annual interest of 12%. Likewise, he was required
to consign his January 2007 honorary payment receipt. Teodoro Petkoff, as
legal representative of –in TalCual was ordered to cancel the fine corresponding
to the ten and a half monthly salaries, which is going to be calculated on the
bases of the highest salary on the diary payroll, correspondent to the formula in
force the month prior to the fine imposition.
3. Case Report
Topic:
When:
Where:
What Happened:
Ibero- American Agreement of Cinematographic Co-Production
March 05, 2007
Venezuela
Last March 5th, it was issued in O.G. Number 353.147, the Approbatory Protocol
Law of the Latinamerican Cinematographic Co - Production Agreement
Emendation, subscribed last July 14, 2006 in Bogota - Colombia, and which from now on - will be named Ibero - American Agreement of Cinematographic
Co- Production.
This Agreement, which country members are Argentina, Brazil, Colombia, Cuba,
Ecuador, Spain, Mexico, Panama, Peru and Venezuela, was created in order to
incentive the cooperation and the cinematographic and audiovisual development
in the Ibero American countries.
In this way, the Protocol modifies some articles of the Agreement; especially
those related to the conditions that must be accomplished to obtain the
established benefits to the artistic works developed under the co-production
figure, which is included in the aforementioned Treaty. The most important
issues are:
4. Case Report
Topic:
When:
Where:
What Happened:
•
According to the Agreement, the cinematographic pieces elaborated
under the co-production figure will be considered as national artwork in
each co-producer’s country of origin, receiving the advantages and fiscal
incentives applied to the cinematographic industry in those countries;
•
The proportion of the respective contribution of each producer might
vary from twenty (20) to eighty percent per movie;
•
The productions made under the Agreement won’t be allowed to have a
bigger participation than a thirty percent (30%) coming from no member
countries and necessarily the co-producer must be one of the country
members;
•
If it’s the case of counting on a no member country co-producer, the
participation of the members could not be higher than ten percent and it
should not exceed the sixty (60%) percent of the production total cost;
•
In the multilateral co - productions matters, those artistic works
elaborated in cooperation artistic, technical and financially, the
percentage of the economic participation won’t be inferior to ten percent
(10%) and no superior to twenty five (25%) of the total cost;
•
The minority co - producer’s contributions must compulsory include a
technical and artistic effective participation;
•
Each country contribution must include at least one creative element, an
actor or actress playing the main role, one playing a secondary
character and a qualified technician;
•
Exceptionally, bipartisan co-productions would be admitted, but always
accomplishing the established requirements in the Agreement.
Incentive for the National Production in the Cultural Industries
2006
Venezuela
The Venezuelan Government has made many efforts to stimulate the growth of
its cultural industry; all through the enhancement of national values.
Several legal initiatives have been tried. These initiatives have included the
promulgation of laws that privilege the national over foreign production, as well
as direct investments in infrastructure and companies related to the musical,
audiovisual, even the literary industry.
The most recent legal innovation in the cultural field has been the 060/2006
Providence, in which the cultural manifestations awarded with the Cultural
Ministery Prize are be claimed as Cultural Assets of National Interest. The
aforementioned Providence was issued by the Instituto del Patrimonio Cultural.
Through this resolution, nine different creations – including audiovisual,
theatrical, dancing and musical works - resulted Cultural Ministry Prize winners,
which were created as an incentive for the Venezuelan cultural creation. The
providence establishes that the mentioned Works were winners because
“…artwork values of the aforementioned works make them representatives of the
Venezuelan cultural identities which must be protected, known and preserved in
order to warrant their enjoyment by the present and future generations under the
terms and conditions pointed by the Law”.
Additionally, the Social Responsibility on Radio and TV Programs Law and its
technical norms – which created the National Production figure - defining it as an
audiovisual or musical production in which creation, direction and
postproduction, capital investments, locations, scripts, authors, directors,
artistical and technical staff and the Venezuelan values are evidenced must be
noticed; and the Independent National Production to which the Law grants all the
economic benefices through subsides and payment facilities at the same time
that assure its presence within the daily Radio and TV programs. Likewise, the
Law establishes that more of the fifty percent of the daily program must include
both genres - National and Independent Productions.
Specifically within the musical genre was retaken the fifty- fifty issue and for each
foreign musical work transmitted, one Venezuelan piece must be played. In this
way the Resorte Law establishes that fifty percent of the musical works
transmitted through radio services, must be Venezuelan Works.
Likewise, the promoting and financial policies must be noticed because they
establish in the National Cinematography Law –executed by the National
Autonomous Cinematography Center- the promotion of national cinematography
projects, including the recuperation and improvement of the movie theaters and
the assurance for the national cinematography works their presence in those
theaters in a period of - at least - two weeks.
Now, the Estate’s interest is not just the aforementioned legal initiatives, but also
the direct investments in the infrastructure developments.
In that way, between the most relevant in the audiovisual field, is Amazonia
Films –a governmental movie and audiovisual material distributor created on
2003- which is aimed to the diversification of the national audiovisual offer in
movie theaters and TV programs. Additionally, in June 2006 was inaugurated the
Movie Village, a governmental initiative dedicated to the work production and
postproduction for the movie industry and the national TV.
This building of 40 m2 construction, located in Guarenas is one of the most
modern structures for the creation and development of the audiovisual pieces. It
has the most advanced technological equipments and an outrageous
infrastructure for movie makers and national independent producers for national
cinematographic projects and foreign co - productions.
At last, we should considerate the Estate projects in the literature field: the
establishment of the Venezuelan Literary Agency, the Venezuelan Book
Distributor and the Editorial Platform of the Culture Ministery and soon, the
creation of and national imprint for small editorials and national authors, in order
to promote the literature work productions in our country, and which launch is
supposed to be this first trimester of 2007, likewise the creation of the Word
Museum.
In any case, and being neutral before polemic opinions on the wide
discretionarily of the supervising entities in the subject, and their power of
decision on the issue, like their power of issuing administrative regulation that
rule –among other subjects than the national production- the companies
limitations and/or foreign producing companies to commercialize in our country.
All these proposals are oriented to a common goal: the promotion of the national
creation to retake the national cultural values and identity.
5. Case Report
Topic:
When:
Where:
What Happened:
Regulation for Family Vehicle Advertising
June 23, 2006
Caracas, Venezuela
During 2006, the Venezuelan vehicle assemblers agreed with the Venezuelan
Government the production of family cars for selling under preferential
conditions, such as exoneration of VAT (Value Added Tax) payment and lower
interest rates; this program is named Plan Venezuela Móvil.
On June 23, 2006, the Industry and Commerce Ministry - national entity in
charge of compliance and control of this program along with Consumers
Protection Institute INDECU- published an administrative resolution establishing
the norms, conditions and modalities for selling, informing and advertising the
vehicles that participate in the Venezuela Móvil program.
Among its most relevant dispositions were the advertising definition and the
content of some as information minimum, such as:
1. The vehicle identification and its respective characteristics;
2. Inclusion of the phrase: “vehicle exonerated of VAT payment, according
to the Venezuela Móvil program”;
3. Inclusion of the basic price of the vehicle;
4. In cases where the car is offered with special components or
accessories, the price of the vehicle and the price of such components
and accessories must be separately pointed, indicating that only the
automobile is exonerated from the VAT payment.
5. Identification of the Industry and Commerce Ministry and the INDECU,
as the public entities responsible for the program policies and its
controls;
6. Program logo inclusion, among others.
6. Case Report
Topic:
When:
Where:
What Happened:
Resolution of the Venezuelan Antitrust Authority –ProcompetenciaPointing that Wyeth, s.a Committed Practices of Exclusion Against its
Competitor Dollder, c.a.
December 26, 2006
Venezuela
Due to supposed Antitrust restrictive practices, the ESPECIALIDADES
DOLLDER Company filed an administrative action against LABORATORIOS
WYETH S.A. This action was based on the entrance and permanence in the
market obstaculization; manufacturing, distribution and technologic development
factor manipulation and domain position abuse.
ESPECIALIDADES DOLLDER denounced that WYETH has pretended –in an
illegal way- to obstaculize the IDOXEN® medicine entrance in the national
market. It must be noted that LABORATORIOS WYETH owned the unique
available medicine based on VENLAFAXINE active principle. Once WYETH
learnt about the possibility of the IDOXEN product launch –which already had
the legal documentation from the Health Authority- it sent a cease and dissent
letter to ESPECIALIDADES DOLLDER.
LABORATORIOS WYETH pointed that in the letter, they just were limited to
inform: (i) the existence of a patent in their favor and its claims; (ii) the law
dispositions established in the Andean regulation that rule the owner’s rights including relative dispositions to actions against products that infringe the patent; (iii) the acknowledgement of the eventual Idoxen commercialization; (iv) the
possible damages of the patent infringement and finally, (v) 100 samples of the
product were required.
In order to determine the relevant market in this case, specifically the product
relevant market, the Superintendence analyzed the medication substitution
possibilities, being confirmed that the demand will depend of the consumer
preferences and their prices.
Now, in this particular case, it was highlighted that among the
pharmaceutical products aimed to treat the central nervous system, there
are 58 antidepressives, including those Serotonin-norepinephrine reuptake
inhibitor (SNRIs) products, issue that establishes that the substitution
possibility of an antidepressive product is attached to the Medical Doctor’s
knowledge and experience to prescribe the product more convenient for
his patients.
In the bioequivalence matter, between IDOXEN and EFEXOR XR, it was
established their equivalency. Additionally, it was concluded that in general, all
the antidepressive medicines might be substituted one to another, if the patient
presents any immediate improvement without any desirable second effects.
However, it was affirmed that the property to treat particularly deep depression
and anxiety disorders are reduced to medicines based on Venlafaxine
Clorhidrate and Mirtazapine. For that reason the Superintendence concluded
that “medicines based on the Venlafaxine Clorhidrate active principle are
considered substitutes because they present the same indications to treat the
same pathologies. They are used to treat the deep depression and other anxiety
disorders through its action mechanism”.
About the substitution possibility by the offer side, it was PROCOMPETENCIA
claimed that "the main entrance barriers to which companies confront
themselves in this economical activity are the governmental matter that they
must to accomplish”.
Additionally, an analysis on the composition and manufacturing process of both
medicines IDOXEN (DOLLDER) and EFEXOR XR (WYETH) was made,
concluding that both are base don the same active principle, salt, pharmaceutical
presentation –extended release-, equal concentration, conditions and use
restrictions, but they differ one another in recipients and subsequently, in the
formula and manufacturing technique.
The Superintendence concluded that as a consequence of the difficulties for the
companies in and out the market to offer equivalent products to IDOXEN o
EFEXOR XR, it is hard to have a new competitor in a short term.
About the restrictive practices denounced, the administration concluded:
1.- Related to the supposed restricted practice of the entrance and maintenance
obstaculization of a company in the market, it was pointed that, if it is true that
LABORATORIOS WYETH counted with a product patent based on the
"venlafaxine", the protection it wasn’t on the active principle, reason by which it
had not any right to ask any requirements from ESPECIALIDADES DOLLDER.
Even more, it is affirmed that LABORATORIOS WYETH to indicate its patent
claims in the letter set its legal right boundaries knowledge. The superintendence
considered the LABORATORIOS WYETH’s communication as a serious
pressure action to ESPECIALIDADES DOLLDER, as it seemed a potential
competitor.
In relation to the missive intentional element, it was pointed that in the first place,
what it must to be understood as a intentional component in the competence
analysis are summarized in 3 facts: "1) that exists the scope consciousness in
which the market might resist the action taking by a agent, 2) that having many
other similar acting options from the point of view that the benefits represent, it
hasn’t been chosen the less free competence restrictive, and finally, 3) that the
ultimate objective of the attitude would be the competence restriction".
In addition, it is important to point that the ESPECIALIDADES DOLLDER’s
supplier company (ESPECIALIDADES DOLLDER, DIFFUCAP-CHEMOBRAS
QUIMICA E FARMACEUTICA LTDA) has a patent petition on the IDOXEN
manufacturing method as the recipients, have being published for any
opposition. LABORATORIOS WYETH did not presented any opposition against
in the correspondent period of time.
For that reason, it was declared that due to the LABORATORIOS WYETH’s
position in the market, it can be inferred that effectively it foresaw the
communication effect that it might occur in ESPECIALIDADES DOLLDER. Also,
LABORATORIOS WYETH did not use the alternative mechanisms, such as
presenting opposition against the patent filing. PROCOMPETENCIA claimed:
“having seen that the option of sending a letter with a minatory intention to
Dollder company was finally done, it is evidenced the choosing of the more
restrictive to the free competence option”.
It was concluded that “by having finished the obstaculization, this attitude would
have generated restrictive effects on the free competence, giving continuity to
the WYETH’s monopoly position with all the damages that it creates to the
consumer, in this specific case deep depression and other anxiety disorder
patients”. Reason why it was declared that WHYETH incurred in a restrictive
practice called entrance to the market obstaculization.
2.- About the domain position abuse, it was determined that LABORATORIOS
WYETH has 96% of the market and ESPECIALIDADES DOLLDER the
remaining 4%, having WYETH the domain position in the market.
However, in observing that ESPECIALIDADES DOLLDER introduced IDOXEN
product to the market, the Superintendence declared that there is not any
indication of domain position abuse.
Summarizing, the Superintendence concluded that LABORATORIOS WYETH
incurred in the restrictive practice of the entrance and maintenance
obstaculization of the free competence in the market, but it did not manipulated
the production, distribution and technical development elements or abused in
any case of its domain position.
Comment:
It was imposed to LABORATORIOS WYETH a compensation of US$ 188,000.
From this case, it turns out very interesting that the surcease letter mailing was
considered a way of restrictive practice to the free competence, and that it was
effectively sanctioned.
It is important to point that in this resolution, it was emphasized the threatening
expressions used on the letter sent by LABORATORIOS WYETH.
Communication that it is not adjusted to the ESPECIALIDADES DOLLDER’s
right to exercise the any commercial activity. For this reason, this element must
be highlighted to take into account the details and terms in which a surcease
letter is sent in order be considered as a restrictive practice to the free
competence.
7. Case Report
Topic:
When:
Where:
What Happened:
Developments on the Venezuelan Foreign Policy, Affecting the Trademarks
Regulation
April 2006
Caracas, Venezuela
Last April 2006, Venezuela notified its retirement from the Andean Community, a
sub-regional integration agreement to which the country belonged for more than
twenty years, along with Colombia, Ecuador, Bolivia and Peru.
In respect of Intellectual Property normative – and particularly, in regulation of
trademarks and patents- the implications of this Governmental action were very
important. Before Venezuela entered to the Andean Community, the only
applicable law in this area was the 1955 Industrial Property Law. After the
country joined the Andean Group, the Communitarian Decisions were adopted
and became almost the unique applicable normative. In matter of Industrial
Property, we adopted the 486 Decision as a national law which establishes a
common regime on the subject.
About trademarks, two different positions are currently discussed:
•
Due to a constitutional disposition (153 Article) which establishes that
every rule adopted by means of Integration Agreements are part of the
Venezuelan Normative, the Decisions of the Andean Community are still
legitimate;
•
With the retirement of the Andean Community, the communitarian
normative is no longer applicable, and the only valid regulation is the
Industrial Property Law and the remaining international treaties in the
area.
Until today, no official and definitive position has been taken. However, a
permanent commission of the National Assembly is currently working on a new
Industrial Property Law which will adopt all the principles established in the
International Treaties subscribed by Venezuela.
8. Case Report:
Topic:
When:
Where:
What Happened:
Venezuela joins the MERCOSUR
July 4, 2006
Caracas, Venezuela
Last July 4 2006, Venezuela joined the MERCOSUR, an economic integration
agreement oriented to establish a common market between Argentina, Brazil,
Paraguay and Uruguay.
As a part of this agreement, Venezuela is enforced to adopt the Protocol for
Harmonization of Intellectual Property Normative in Trademarks and Geographic
Indications. Subsequently, the national authorities are forced to observe and
apply these dispositions.
Last August 9, 2006, Venezuela announced its retirement of the Andean
Community, sending an “understanding memorandum” for setting its retirement
conditions. Nevertheless - so far it is known - no Intellectual Property issues
were included.
ZIMBABWE
Brenda Wood Kahari
B.W. Kahari Legal Practitioners
bwkahariLaw@aol.com
bwkahari@mweb.co.zw
www.lawyersforafrica.com
1. General Legal
Overview:
Although there are several statutes in Zimbabwe related to advertising, the
industry is self regulated. Self regulation has been primarily one of customs
and practice rules or guidelines established by the industry and in the past the
Standards Association of Zimbabwe (SAZ) has been responsible for handling
and mediating disputes on a voluntary basis within the industry. SAZ has been
established for a number of years as an independent statutory body. Although
it receives some revenue from collection of fees for services, it is funded
through grants from Government. There are several Associations which form
part of the self regulation process.
The political situation in recent years, however, has been such that the
Government of Zimbabwe, being pre-occupied with maintaining its political
status quo, has focused on eliminating political opposition and/ or criticism and
as a result greater scrutiny and emphasis are placed on the express or implied
political message or intent of any advertisement placed in the public domain
through any means.
Legislation:
There are no reported cases for Advertising Law.
The foregoing legislation with brief explanations is enacted in Zimbabwe:
(1)
Access to Information and Protection of Privacy Act (and
Amendments) – This Act is intended to regulate the media and give greater
control to Government over journalist and media houses through licensing and
regulatory procedures;
(2)
The Competition Act (and Amendments)—This Act provides for
prohibition against unfair business and trade practices through misleading
advertising, representing or releasing false information about a commodity;
(3)
Advertisement Regulations Act—This Act provides for control of
advertisements on structures or apparatus erected or intended for display
along railways or roads declared to be a main district or branch road;
(4)
Broadcasting Services Act—This Act is directed at controlling the local
television and radio broadcasting services through licensing and regulatory
procedures;
(5)
Censorship & Entertainment Control Act—As the title suggests this
empowers Government to censor cinemas and other entertainment primarily
with regard to pornography;
(6)
Official Secrets Act—Protects from publication through any media,
information which the Government deems should not be disclosed in the
interest of the public good;
(7)
Public Health (Control of Tobacco) Regulations imposes restrictions
and obligations on manufacturers, retailers and consumers of tobacco
products in respect of control of smoking in public places and transport; health
warnings, disclosure of ingredients, prohibition of sales or promotion to
children;
Advertising
Associations:
(8)
Children’s Act (as amended) prohibits the sale of liquor, tobacco,
cigars, cigarettes cigarette papers or specified drugs as defined in the Drugs
and Allied Substances Control Act.
(1)
The Standards Development Fund Act—provides for the
establishment of a fund to develop and promote the standardization of
commodities and services through the imposition of a levy upon employers.
Through this Act the government provides grants to the Standards Association
of Zimbabwe (SAZ), a private Association;
(2)
Advertising Media Association—An Association of Media Houses, e.g.,
Zimbabwe Broadcasting Association, The Herald and other newspapers, etc.
They reserve the right to refuse to air material which they do not consider
appropriate and therefore play a major role in regulation and censorship;
(3)
Zimbabwe Advertising Practitioners Association—represent
advertising agencies;
(4)
Practices:
Communication Industry Association—represent advertising agencies;
(5)
Association of Zimbabwe Advertisers—association of private
companies who play a role in regulation through cooperation for their own
common interests.
As mentioned, the Advertising Industry is self regulated and there are no
reported cases related to advertising law. This is not to say, however, that
there have not been conflicts, disagreement or unacceptable censorship.
Though the latter may occur, they are unlikely to be resolved through court
process or formal procedure. Through either implied or express intimidation or
simply a desire by business to avoid conflict with Government, businesses will
not proceed with what may be deemed as offensive material in advertising.
Examples:
(1)
The use of bill boards in Zimbabwe for advertising along major roads
has been very popular because it is relatively inexpensive to the advertiser in
comparison to other forms of advertising; is visible for a longer period of time
to a broader audience of consumers and cost nothing to the consumer. GAP,
Inc. desired to advertise its presence in Zimbabwe through a bill board on a
major road. The sign would have included in addition to GAP and OLD NAVY,
in a very conspicuous way, the words “BANANA REPUBLIC” which is one of
its well known brands. Its contract with its advertisers worldwide prohibited
GAP, Inc. from including any other representation or explanation of the words.
Because of the fear amongst advertising firms and bill board licensees that the
words would be misconstrued by the Government as an insult, none of the
agencies or bill board licensees would place the advert for fear of reprisals.
(2)
Plan International a non government organization operating in
Zimbabwe through a bi lateral agreement to undertake on a non profit basis
activities for family planning distributed free condoms to residents in the high
density areas. A large number of these condoms were provided to the
Movement for Democratic Change (MDC) which is the opposition party to the
ruling party of the Government. The MDC used the condoms as a means to
advertise their party by placing MDC stickers on them. The Government
threatened to cancel the bi lateral agreement with Plan and deport their staff,
citing their involvement in such political advertising as unacceptable. However,
the organization put forth evidence that they were not involved in the
advertisement by MDC and had no knowledge of the intended use of the
condoms for that purpose by MDC. After a series of meetings and
negotiations the Government agreed not to cancel Plan’s operations in
Zimbabwe.
The above cited examples are intended to show how advertising may be
affected by cultural and political nuances in Zimbabwe.
LIST OF CONTRIBUTORS
ARGENTINA
AUSTRALIA
Dámaso A. Pardo
Paula Fernandez Pfizenmaier
Pérez Alati, Grondona, Benites, Arntsen &
Martínez de Hoz (h)-Intellectual Property
Angel J. Carranza 1852
C1414COV Capital Federal
54.11.4114.3000
dap@pagbam.com.ar
pgfp@pagbam.com.ar
www.pagbam.com.ar
Peter Le Guay
Catherine Chant
Kieran Gamble
Katarina Smolcic
Thomson Playford
Level 25, Australia Square Tower
264 George Street
Sydney NSW 2000
61.2.828.5800
pleguay@thomsonplayford.com.au
cchant@thomsonplayford.com.au
kgamble@thomsonplayford.com.au
ksmolcic@thomsonplayford.com.au
www.thomsonplayford.com.au
AUSTRIA
BELGIUM
Dr. Stefan Kofler
Greiter, Pegger, Kofler & Partners
Maria-Theresien-Strasse 24,
A-6020 Innsbruck
43.512.571.811
stefan.kofler@greiter.lawfirm.at
www.greiter.lawfirm.at
Jan Ravelingien
Marx, Van Ranst, Vermeersch & Partners
Avenue de Tervueren 270
1150 Brussels
32.2.285.0100
jan.ravelingien@mvvp.be
www.mvvp.be
BOLIVIA
BRAZIL
Marcos Mercado
Alexandra Blanco
Guevara & Gutierrez S.C.
Torre Ketal
Piso 4, Oficina 2 – Calacoto
La Paz 9332
591.2.277.0808
ablanco@gg-lex.com
mmercado@gg-lex.com
www.gg-lex.com
Valdir Rocha
Veirano & Advogados Associados
Avenida Presidente Wilson, 231, 23.andar
20030-021 Rio de Janeiro
55.21.3824.4747
valdir.rocha@veirano.com.br
www.veirano.com.br
LIST OF CONTRIBUTORS
CANADA
CHILE
Wendy Reed
Geneviève Marcotte
Heenan Blaikie
Suite 2600, P.O. Box 185, 200 Bay Street
South Tower, Royal Bank Plaza
Toronto, Ontario M5J 2J4
416.360.3542 (WR)
514.846.2238 (GM)
wreed@heenan.ca
gmarcotte@heenan.ca
www.heenanblaikie.com
Rafael Pastor
Guillermo Rivas Sureda
Albagli, Zaliasnik & Cia.
Miraflores 130, 25th Floor
Santiago
56.2.445.6000
rpastor@az.cl
grivas@az.cl
www.az.cl
CHINA
COLOMBIA
Richard Wageman
Lehman, Lee & Xu
10-2 Liangmagio Diplomatic Compound
No. 22 Dongfang East Road, Chaoyang District
Beijing 100600
86.10.85321919
rwageman@lehmanlaw.com
www.lehmanlaw.com
Ricardo Duarte Duarte
Duarte Garcia & Asociados
Carrera 7 No. 7-21, Piso 6
Bogota, D.C.
57.1.217.0800
rduarte@col-law.com
www.col-law.com
COMMONWEALTH CARIBBEAN
COSTA RICA
George C.J. Moore
George C.J. Moore Law Offices
105 S. Narcissus Avenue, Suite 812
West Palm Beach, FL 33401
561.833.9000
barrister@barrister-law.com
www.caribbeantrademarks.com
Uri Weinstok M.
WEINSTOK Abogados
Paseo Colón, Torre Mercedes, 9˚ piso
San José
506.256.5060
uweinstok@weinstok.co.cr
www.weinstok.co.cr
LIST OF CONTRIBUTORS
DENMARK
DOMINICAN REPUBLIC
Johan Løje
Hans Flensted - Jensen
Sandel, Løje & Wallberg
Frederiksgade 7, PO Box 9006
DK-1265 Copenhagen K
45.33.11.46.22
jl@slw.dk
hfj@slw.dk
www.slw.dk
Jaime R. Angeles
Angeles & Lugo Lovatón
Alberto Peguero 107
Ensanche Miraflores, Santo Domingo
809.221.1717
jangeles@angeleslugo.com
www.angeleslugo.com
ECUADOR
FINLAND
Rodrigo Bermeo
Diego Klier
Bermeo & Bermeo
World Trade Center
12th Floor, B
Quito 17-12-881
593.2.254.5872
bblaw@uio.satnet.net
www.bermeolaw.com
Bernt Juthström
Mikael Segercrantz
Roschier Holmberg Attorneys Ltd.
Keskuskatu 7 A
001 00 Helsinki
358.20.506.6000
bernt.juthstrom@roschier.com
mikael.segercrantz@roscheir.com
www.roschier.com
FRANCE
GERMANY
Michel Béjot
Caroline Bouvier
Bernard Hertz Béjot
8, rue Murillo
75008 Paris
33.1.43.18.80.80
bejot2@aol.com
cbouvier@bhbfrance.com
www.bhbfrance.com
Dr. Søren Pietzcker
Dominik Eickemeier
Dr. Verena Hoene
Rudolph du Mesnil
Heuking Kühn Lüer Wojtek
Grüneburgweg 102
60323 Frankfurt
Germany
49.69.97561211
s.pietzcker@heuking.de
d.eickemeier@heuking.de
v.hoene@heuking.de
r.dumesnil@heuking.de
www.heuking.de
LIST OF CONTRIBUTORS
GREECE
GUATEMALA
Kriton Metaxopoulos
Anastasia Kappou
Metaxopoulos Law Firm
54 Vas. Sofias Av.
11528 Athens Attica
Greece
30.210.7257611
k.metaxopoulos@metaxopouloslaw.gr
akappou@metaxopouloslaw.gr
www.metaxopouloslaw.gr
Marco Antonio Palacios
Cynthia Sequeira
Palacios & Asociados / Sercomi
Avenida La Reforma 6-64 zona 9
Edificio Corporativa Reforma
Torre I, Nivel 9
01009-Guatemala
502.2385.3416
mapalacios@sercomi.com.gt
csequeira@sercomi.com.gt
www.sercomi.com.gt
HUNGARY
INDIA
Matías Vallejos Meana
Salló Ügyvédi Iroda
Honvéd utca 38. IV./7.
1055 Budapest
36.1.331.0311
hungarylex@mail.datanet.hu
www.decapoa.com
Sharad Vadehra
Kan & Krishme
B483, KNK House, Meera Bagh
Paschim Vihar, New Delhi 110063
91.11.455.70275/6
knk@kankrishme.com
www.kankrishme.com
IRELAND
ISRAEL
Duncan Grehan
Conor Griffin
Duncan Grehan & Partners Solicitors
Gainsboro House, 24 Suffolk Street
Dublin 2
353.1.6779078
dgrehan@duncangrehan.com
cgriffin@duncangrehan.com
www.duncangrehan.com
David Wolberg
Kuperschmit & Goldstein & Co.
12 Ha’adad Street
PO Box 1647
Even Yehuda 40500
972.9.899.7477
dwolberg@kgcolaw.com
www.kgcolaw.com
LIST OF CONTRIBUTORS
ITALY
KOREA
Felix Hofer
Hofer Lösch Torricelli
Via Giambologna, 2 rosso
Florence 50132
39.055.553.5166
fhofer@hltlaw.it
www.hltlaw.it
Jay Young – June Yang
Kim & Chang
Hungkuk Life Insurance Building, 9F
Sinmunno 1- ga, Jongno-gu
Seoul 110-786
Korea
822.764.8855
yjyang@kimchang.com
www.ip.kimchang.com
LUXEMBOURG
MALAYSIA
Laurent Fisch
Nicolas Van Heule
Molitor Fisch & Associes
8, rue de Sainte - Zithe
BP 690
L-2016 Luxembourg
352.297.298
laurent.fisch@mfa.lu
nicolas.vanheule@mfa.lu
www.mfa.lu
Patrick Mirandah
patrick mirandah co. sdn bhd.
Suite 3b-19-3, Level 19
Block 3b, Plaza Sentral
Jalan Stesen Sentral 5
50470 Kuala Lumpur
603.2278.8686
pmirandah@mirandah.com
www.mirandah.com
MEXICO
NEW ZEALAND
Roberto Arochi
Francisco Garza
Arochi, Marroquinn & Lindner
Insurgentes Sur 1605
20th Floor
San José Insurgentes
03900 Mexico City
52.55.5095.2050
rarochi@aml.com.mx
fgarza@aml.com.mx
www.aml.com.mx
Erich Bachmann
Monica Choy
Lisa Clark
Hesketh Henry
Level 11, AXA Building
41 Shortland Street, Private Bag 92093
Auckland 1030
64.9.375.8709
erich.bachmann@heskethhenry.co.nz
monica.choy@heskethhenry.co.nz
lisa.clark@heskethhenry.co.nz
www.heskethhenry.co.nz
LIST OF CONTRIBUTORS
NICARAGUA
NORWAY
Julián J. Bendaña - Aragón
Guy Jose Bendaña Guerrero & Asociados
PO Box 3140
Managua 00005
505.266.5662
julian.bendana@guybendana.com.ni
www.guybendand.com.ni
Hans E. Skirstad
Bente Holmvang
Bull & Co. Advokatfirma AS
Postboks 2583 Solli
N-0203 Oslo
47.23.010101
sk@bullco.no
bho@bullco.no
www.bullco.no
PARAGUAY
POLAND
Hugo T. Berkemeyer
María Antonia Gwynn
PO Box 285
Asunción
595.21.446.706
hugot.berkemeyer@berke.com.py
maria.gwynn@berke.com.py
www.berke.com.py
Dr. Ewa Skrzydlo-Tefelska
Eric Rheims
Soltysiński, Kawecki & Szlezak Legal Advisors
Wawelska 15B
02-034 Warsaw
48.22.608.7047
ewa.tefelska@skslegal.pl
eric.rheims@skslegal.pl
www.skslegal.pl
PORTUGAL
ROMANIA
César Bessa Monteiro
Azvedo Neves, Benjamin Mendes,
Bessa Monteiro, Cardigos & Associados
Largo de São Carlos, n.º 1-7
1200-410 Lisboa
Portugal
351.21.3583620
c.bmonteiro@abbc.pt
www.abbc.pt
Florentina Dumitrescu
Wood Lupascu Dumitrescu & Associates SCPA
11-13 Soseaua Kiseleff
011342 Bucharest
40.21.222.8888
florentina.dumitrescu@wldlaw.ro
LIST OF CONTRIBUTORS
SOUTH AFRICA
SPAIN
Chris Job
Kelly Thompson
Lindie Serrurier
Adams & Adams
PO Box 1014
Pretoria 0001
27.12.481.1704
chris@adamsadams.co.za
kelly-t@adamsadams.co.za
lindie-s@adamsadams.co.za
www.adamsadams.co.za
Gerhard W. Volz
Schiller Abogados
Henri Dunant 19,
28036 Madrid
34.914.179.780
gwvolz@schillerabogadost.es
www.schillerabogados.com
SWEDEN
SWITZERLAND
Michael Plogell
Wistrand Advokatbyrå
Lilla Bommen 1
SE-411 04 Goteburg
46.31.771.21.00
michael.plogell@wistrand.se
www.wistrand.se
Peter Hofer
Frick Hofer Hunziker
Rechtsanwälte
Schifflände 5 (Hechtplatz)
PO Box 614
8024 Zurich
41.1.250.4370
peterhofer@rabenhaus.ch
www.rechtsanwaelte-rabenhaus.ch
TURKEY
UNITED KINGDOM
Bilge Saltan
Mehmet Gün & Partners
Kore Sehitleri C ad. No. 32
Zincirlikuyu 34394
Istanbul
90.212.2 75.90.03
bilge.saltan@gun.av.tr
www.gun.av.tr
Brinsley Dresden
Lewis Silkin LLP
5 Chancery Lane
Clifford’s Inn
London EC4A 1BL
20.7074.8069
brinsley.dresden@lewissilkin.com
www.lewissilkin.com
LIST OF CONTRIBUTORS
UNITED STATES
VENEZUELA
Douglas J. Wood
Christa Kenin
Susan Rosenfeld
Reed Smith LLP
599 Lexington Avenue
New York, NY 10022
212.549.0377
dwood@reedsmith.com
srosenfeld@reedsmith.com
ckenin@reedsmith.com
www.reedsmith.com
www.adlaw.com
Ricardo Alberto Antequerra
Estudio Antequerra Parilli & Rodríguez
Edificio Centro COINASA, PH-B
Avenida San Felipe
LA CASTELLANA
Caracas 1060 Venezuela
58.212.263.9944
ricardoalberto@antequera.com.ve
www.antequera.com.ve
ZIMBABWE
Brenda Wood Kahari
B.W. Kahari Legal Practitioners
Baronage House
24 Lanark Road
Belgravia/ Avondale
Harare, Zimbabwe
263 4 250994/5
bwkahariLaw@aol.com
bwkahari@mweb.co.zw
www.lawyersforafrica.com
© Global Advertising Lawyers Alliance (GALA) 2007, All Rights Reserved