Comparative advertising is allowed in France since the Law of 1992, incorporated in the Code of Consumption (L121-8 s). The directive 97/55/EC of 06/08/1997 modifying the directive 84/450/EC of the 10/09/1984 leads the deceptive advertising and the comparative advertising.
Under Article 2(1) of Directive 84/450 as amended, advertising means, for the purposes of that directive, the making of a representation in any form in connection with a trade, business, craft or profession in order to promote the supply of goods or services, including immovable property, rights and obligations.
According to Article 2(2a) of Directive 84/450 as amended, comparative advertising, within the meaning of that directive, is any advertising which explicitly or by implication identifies a competitor or goods or services offered by a competitor.
The European directive was transposed into the French Right by the ordinnance of 23/08/2001.
The conditions on form and substance are defined in Article L 121-8 and ss of the Code of Consumption.
The comparative advertising is rarely used in France because its conditions are very strict and the limit with the unfair and denigrating advertising is quickly passed over.
For example, a delivering service "24 hours free" was not considered as the comparison to the service "48 hours chrono" of the competitor but as an unfair and denigrating advertising (Court of Appeal of Douai, 02/10/1995):
According to another case-law (Ordinnance of 13/11/1997 - Laboratoires Servia c/ Laboratoires Roussel Diamant) an advertising comparing two drugs is to be forbidden when it is a "deceptive and incomplete comparison because restricted to the character of effectiveness, without mentionning other fundamental criterias as the use security".
In a decision of 25/10/2001, the ECJ precised the notion of comparative advertising (C-112/99 Toshiba): "in order for there to be comparative advertising within the meaning of Article 2(2a) of Directive 84/450 as amended, it is therefore sufficient for a representation to be made in any form which refers, even by implication, to a competitor or to the goods or services which he offers. It does not matter that there is a comparison between the goods and services offered by the advertiser and those of a competitor.".
In particular, the ECJ reminded that the use of the mark of a third party can be legitim when it is necessary to inform the public of the nature of the products or of the destination of the provided services (C-63/97 BMW). In this case, it is not comparative advertising.
|
