Cheese snack advertising case fails on technical grounds

The Harju County Court has disposed of an action relating to alleged misleading outdoor advertising involving the trademark K-KOHUKE (Case 4-06-241, September 28 2007).

In 2005 the Parliament of Estonia approved an amendment prohibiting outdoor political advertising during the period of the local government council elections to be held in October of that year.

In October 2005 Kohuke Ltd launched on the market a dairy product bearing the sign K-KOHUKE (kohuke means 'cottage cheese bar' in Estonian). Kohuke also applied for the registration of the sign K-KOHUKE as a trademark at the Estonian Patent Office.

On October 1 and 2 2005 outdoor advertisements for the K-kohuke dairy product were launched; these consisted of the capital letter 'K' on a green background accompanied by the text "For everyone!" or "We care!". The advertisement was designed by Idea AD Ltd and put in place by Media Planning Group Eesti Llc.

These outdoor advertisements caused controversy because of their similarity to the emblemof the Central Party, which participated in the elections in question. It was alleged that the advertisement for K-kohuke:

• was an implicit means of drawing attention to the Central Party and thus circumvented the ban on political advertising; or
  
  
• represented a disguised donation to the Central Party.

The Central Party denied any connection with the advertisement.

On October 4 2005 the North Police Prefecture commenced misdemeanour proceedings against Idea AD, Media Planning and board members of these companies Mark Eikner and Paavo Pettai for violation of the restrictions on outdoor political advertising. The action was based on Paragraphs 67(2)(1) and (2) of the Local Government Council Election Act. The North Police Prefecture alleged that the advertisement for K-kohuke was connected to the Central Party and was thus prohibited by law.

On October 5 2005 the Estonian Consumer Protection Board commenced an action under Paragraphs 23(2)(1) and (2) of the Advertising Act. On December 8 2005 the board held that the advertisement was misleading, as it was impossible to identify which product was being advertised. Therefore, it imposed a fine of Ekr25,000 on Idea AD.

On March 6 2007 the Harju County Court quashed the board's decision. Subsequently, the North Police Prefecture withdrew the charges against Idea AD under Paragraph 67(2)(2) of the Local Government Council Election Act. The withdrawal of the case against Idea AD meant that the court could no longer hear the action against Media Planning, Eikner and Pettai on technical grounds. It therefore disposed of the case.

Kärt Laigu, Käosaar & Co, Tallinn