Rules on comparative advertising further clarified by ECJ

The European Court of Justice (ECJ) has given its judgment following a reference from the Brussels Court of Appeal on the interpretation of Council Directive 84/450 concerning misleading and comparative advertising (as amended by Council Directive 97/55). The reference was made in the context of an action brought by Comité Interprofessionnel du vin de Champagne (CIVC), the committee charged with protecting rights in the name champagne, and Veuve Clicquot Ponsardin SA against Belgian brewer De Landtsheer Emmanuel SA, for misleading advertising and impermissible comparative advertising in relation to its beer Malheur Brut Réserve.

De Landtsheer's new beer had been produced using the process normally used to make sparkling wine or champagne, and when launching the product De Landtsheer used the expression 'Champagnebier' to emphasize this. As a further reminder, the bottle and its cardboard packaging made reference to the winegrowers of Reims and Épernay and used the wording 'Brut Réserve', ' La première bière Brut au monde' ('the first Brut beer in the world'), and 'Bière blonde à la méthode traditionelle' ('Traditionally brewed light beer').

The first instance court ordered De Landtsheer to stop using the wording 'méthode traditionelle', the designation of origin 'champagne' and the references to Reims and Épernay, and the method used to make champagne, but allowed it to continue the use of the words 'Brut' and 'Réserve'. De Landtsheer appealed, and the CIVC and Veuve Clicquot cross-appealed to the Court of Appeal which stayed the proceedings pending a reference to the ECJ on the interpretation of Council Directive 84/450 (as amended).

The two key questions to the ECJ concerned the application of the directive to advertisements where (i) a comparison is made with another type of product, and (ii) a product that does not have designation of origin status is compared with a product that does.

The Court of Appeal asked whether the definition of 'comparative advertising' in the directive covers advertisements in which the advertiser refers only to a type of product by way of comparison.

Article 2(2a) of the directive defines 'comparative advertising' as "any advertising which explicitly or by implication identifies a competitor or goods or services offered by a competitor".

The ECJ ruled that Article 2(2a):

"is to be interpreted as meaning that a reference in an advertisement to a type of product and not to a specific undertaking or product can be considered to be comparative advertising where it is possible to identify that undertaking or the goods that it offers as being actually referred to by the advertisement. The fact that a number of the advertiser's competitors or the goods or services that they offer may be identified as being in fact referred to by the advertisement is of no relevance for the purpose of recognizing the comparative nature of the advertising."

The ECJ added that it was for the national courts to consider whether an advertisement enabled consumers to identify one or more specific undertakings or their goods or services, and that the court must take into account the presumed expectations of an average consumer who is reasonably well informed, observant and circumspect.

Next, the ECJ discussed the issue of making a comparison with products with designation of origin. In its advertising, De Landtsheer compared its beer with champagne, a product protected by Community law through designation of origin status. The Court of Appeal asked whether Article 3a(1)(f) of the directive must be interpreted as making impermissible the comparison between products that do not have a designation of origin with those that do.

Article 3a(1)(f) of the directive permits comparative advertising where "for products with designation of origin, it relates in each case to products with the same designation" and the ECJ read this in conjunction with Article 3a(1)(g) which further requires that the advertisement:

"does not take unfair advantage of the reputation of a trademark, trade name or other distinguishing marks of a competitor or of the designation of origin of competing products."

The ECJ considered that where an advertisement complied with all conditions governing whether a comparative advertisement was permissible, an absolute prohibition on a comparison between products with and without designation of origin would be unwarranted. It noted that Article 3a(1)(g) would protect those products with designation of origin where an advertisement for a product without designation of origin was aimed at taking unfair advantage of that other product's status.

This ruling is the latest in a long line of ECJ cases on comparative advertising and is useful in that it deals with two specific issues. Fundamentally, however, underlying this liberal interpretation of the directive is the premise that the court should interpret the conditions within which comparative advertising operates in the sense most favourable to it.

For background discussion of this case, see Rules on comparative advertising clarified by Advocate General.

Jeremy Dickerson, Burges Salmon, Bristol