Rules on comparative advertising clarified by Advocate General

Advocate General Paolo Mengozzi has issued his opinion in the case of De Landtsheer Emmanuel SA v Comité Interprofessionnel du Vin de Champagne. Mengozzi held, among other things, that comparative advertising between a product without a designation of origin and a product with a designation of origin may be unlawful.

Belgian company De Landtsheer Emmanuel SA, the producer of a beer bearing the trademark MALHEUR, began in 2001 to sell a beer called Malheur Brut Réserve, which was produced according to a method similar to the one used for producing champagne. The phrases 'Brut Réserve', 'Reims, France' and 'Bière Blonde à la Méthode Traditionelle' appeared on the bottle of the beer, and in its advertisements De Landtsheer focused on the fact that the beer was an "original" product, since it "clearly resembles the taste of the champagne".

In 2002 the Comité Interprofessionnel du Vin de Champagne (CIVC) and the famous champagne producer Veuve Clicquot brought an action against De Landtsheer before the Tribunal de Commerce de Nivelles, stating that its use of the phrases 'Brut Réserve', 'Reims, France' and 'Bière Blonde à la Méthode Traditionelle' on its beer and advertisements comparing the beer to champagne should be considered as misleading advertising. The Tribunal de Commerce de Nivelles agreed and De Landtsheer appealed to the Court of Appeal of Brussels.

De Landtsheer stated that the advertisements were a legitimate comparison between the goods and were not misleading. The Court of Appeal decided to refer to the European Court of Justice (ECJ) preliminary questions as to whether advertising, in which the producer merely refers to a particular category of goods - without indicating specific competitors - has to be considered as comparative and misleading advertising contrary to Council Directive 84/450.

Giving his opinion on this issue, Mengozzi stated that under the directive any kind of comparison may be considered as comparative advertising. However, he pointed out that in the advertisement an (implicit or express) indication of the competitor has to be provided. Otherwise - according to Mengozzi - the concept of comparative advertising (which is subject to a number of specific conditions provided by the directive) may be too broad.

In addition, Mengozzi stated that in order to define correctly the competitors within the relevant market, it is necessary to identify clearly whether the goods put on the market are interchangeable. Accordingly, in the case at issue, Mengozzi held that the Court of Appeal should evaluate whether De Landtsheer's beer may actually replace champagne in the minds of consumers.

Finally, Mengozzi stated that in the event that a comparison is carried out between a product bearing an indication of origin (such as champagne) and a product not bearing such an indication, a producer who gives the impression to the public that its product is similar to a product bearing the indication of origin carries out an act which may be considered unfair and misleading.

As a consequence, comparative advertising between a beer, which does not bear any indication of origin, and French champagne may be considered misleading.

Maria Luce Piattelli, Lovells, Milan