Comparative advertising rules clarified by European Court of Justice

The Court said that the restrictions can apply to products' protected indications of origin, such as 'champagne' or 'parma ham'.

The Comparative Advertising Directive is designed to protect companies from unfair treatment in advertising produced by rivals. It sets out rules governing how other products can be used for comparison in advertising.

It says that comparisons must be on a like for like basis, and that comparisons with products which have designation of origin status, such as champagne, can only be made if the advertised product has the same status as the product with which it is compared.

In a ruling on the advertising of a luxury Belgian beer, the ECJ has said that a product's advertising can fall within the restrictions on comparative advertising even if it does not mention a specific product. Some of the terms of the advertising were found to break the Directive's rules protecting the designation of origin status of wines from champagne.

Belgian brewer De Landtsheer Emmanuel produced a new beer in its Malheur range called Malheur Brut Reserve. It was produced, said the company, using some of the methods used in the production of fizzy wine.

In advertising Malheur Brut Reserve, De Landtsheer Emmanuel used some phrases associated with champagne, calling it brut, referring to 'la methode traditionnelle', and using the term 'Champagnebier'.

The company was sued in Belgium by champagne producer Veuve Clicquot Ponsardin and a champagne trade body, the Comite Interprofessionnel du Vin de Champagne, who claimed that the terms constituted unlawful comparative advertising.

The Belgian court allowed the brewer to use the words 'brut' and 'reserve', but said it had to stop using all the other terms. De Landtsheer appealed regarding all the terms except 'champagnebier', which it stopped using.

The Brussels Court of Appeal referred aspects of the case to the ECJ, saying that it needed interpretation of the law if it was to rule on the case.

The ECJ has ruled that an advert can count as comparative advertising, and therefore be bound by the Directive, even if it compares itself with an unnamed competitor or competitors.

"According to settled case law, in order for there to be comparative advertising, it is sufficient for there to be a statement referring even by implication to a competitor or to the goods or services which he offers," said the Court's judgment. "The test for determining whether an advertisement is comparative in nature is thus whether it identifies, explicitly or by implication, a competitor of the advertiser or goods or services which the competitor offers. The mere fact that an undertaking solely refers in its advertisement to a type of product does not mean that the advertisement in principle falls outside the scope of the Directive."

"Such an advertisement is capable of being comparative advertising provided a competitor or the goods or services which it offers may be identified as actually referred to by the advertisement, even if only by implication," it said.

The ECJ also ruled that the Directive does not ban comparative advertising of a product without designation of origin with a product that does have it.

The ruling means that references to champagne or associated terms can be judged under the rules regarding comparative advertising, even if no specific product is mentioned. But comparisons by advertisers of a product without  designation of origin with a product with that designation will not automatically fall foul of the rules.