Unilever ordered to cease running misleading 'official sponsor' ad
In Asociación del Fútbol Argentino v Unilever de Argentina, the Federal Court of Appeals in Civil and Commercial Matters has granted an injunction ordering the defendant to cease running its advertising campaign for the cleaning product Ala, on the ground that the campaign could mislead consumers into assuming that this product was an official sponsor of the Argentine national football team.
The Asociación de Fútbol Argentina (AFA) and Procter & Gamble Argentina SRL (P&G) had sought an injunction ordering Unilever de Argentina SA to cease running the advertisement, which was first broadcast just before the 2014 FIFA World Cup kicked off in Brazil. The plaintiffs’ request was initially rejected by the First Instance Court, but the Court of Appeals reversed the lower court’s decision and granted an injunction on June 10 2014.
P&G had contracted the use of the trademarks and designs owned by AFA, and had become an official sponsor of the Argentine national football team for washing powders and laundry detergents for automated washing machines, which were associated with its cleaning product Ariel. Unilever then started to broadcast the advertisement at issue, which may be viewed here in its original language (Spanish).
The advertisement shows Javier Mascherano, vice captain of the Argentine national football team, wearing a blue jersey, and a boy that represents Mascherano as a child wearing the blue-and-white striped shirt that identifies the Argentine team. The player is also shown as a grown-up wearing a shirt with the number 14, entering a football pitch with a football in his hands. The advertisement concludes with the following voice-over (in Spanish): “Ala is the official sponsor of everything we learn as we grow up."
The Court of Appeals decided that, since the FIFA World Cup was about to start, the advertisement - and the reference to ‘official sponsor’ contained in it - could mislead the audience, who might assume that the Ala product manufactured by Unilever was an official sponsor of the Argentine national football team. This was demonstrated by a survey carried out by the plaintiffs, in which eight out of 10 respondents arrived at that conclusion.
The court established that advertising is a representation of the freedom of expression afforded by the Argentine Constitution and the American Convention on Human Rights. However, this does not mean that the individuals or companies running advertising campaigns are exempted from liability for acts that infringe upon the laws that regulate the exercise of rights, including the Trademark Law, the Fair Competition Law, the Paris Convention and the Agreement on Trade-Related Aspects of Intellectual Property Rights.
Based on the evidence provided by the plaintiffs, the court concluded that the advertising campaign at issue could reasonably mislead the audience, as it suggested that Ala was an official sponsor of the Argentine national football team, which was not the case. It could not be ruled out that such mistaken assumption among consumers would not have a negative impact on the actual official sponsor for the detergent sector.
Consequently, Unilever was ordered to cease broadcasting the advertising campaign at issue immediately, once the plaintiffs had deposited a bond of Ps500,000 ($60,000).
Fernando Noetinger, Noetinger & Armando, Buenos Aires
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