Fair comparative advertising legal, confirms appellate court

Argentina

The First Chamber of the Federal Civil and Commercial Court of Appeals has revoked preliminary injunctions preventing Argentine beer company CASA Isenbeck (subsidiary of the German Warsteiner Brauerei Haus Cramer KG company) from broadcasting commercials and using print advertisements in which it mentioned the brand name Quilmes owned by competitor Cervecería y Maltería Quilmes SA (Case 13.066/2004, May 19 2005).

The print advertisements for Isenbeck's beer included the following (transliterated) phrases:

  • "Isenbeck is better than Quilmes because, unlike the latter, it is 100% beer".

  • "The best beer and the most popular are different. Completely".

  • "Isenbeck. He who knows, knows. 100% malt. 100% beer".

In one of these advertisements, Isenbeck detailed information about the products that did not correspond to the actual bottles displayed.

Isenbeck's television commercial included the (transliterated) claim: "Quilmes may be the more popular beer but Isenbeck is better".

Quilmes filed a complaint, arguing that the advertisements infringed its rights. It filed a motion for preliminary injunctions to prevent Isenbeck from using the advertisements. The court of first instance upheld the injunction request and Isenbeck appealed.

The First Chamber of the Federal Civil and Commercial Court of Appeals sided with Isenbeck and revoked the majority of the preliminary injunctions. It first noted that:

"comparative advertising is not in itself forbidden in our law, as long as the legitimate interests of the owner of the referred mark are not damaged. What the law forbids is the use by a party of another's mark as its own, but it does not forbid the use of another's mark ... to compare products."

The court continued that "what is not admissible is that the advertising tries to denigrate or discredit the competitor's mark or that it is misleading. Only when there is bad faith is the advertising illegal".

The court reasoned that Isenbeck's statements that Quilmes's more popular beer was not the best were not necessarily pejorative in tone. It concluded that it was not possible to determine at the preliminary stage whether Isenbeck's advertisements were infringing.

However, the court affirmed the injunction against the advertisement that contained incorrect information, which was considered misleading. The court also pointed out that Isenbeck had omitted to include other important information, such as the differing alcohol content of the products.

Jorge Otamendi, G Breuer, Buenos Aires

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