Casino's luck runs out in dispute over gambling ads

Estonia

In Consumer Protection Board v AS Videomat Casino Group (Case 3-1-1-82-04, September 28 2004), the Supreme Court has upheld the Consumer Protection Board's ruling that, pursuant to the Estonian Advertising Act, the defendant casino's advertisement featuring the greeting 'With best wishes for a new year' and its registered trademarks constituted prohibited advertising promoting gambling under the Advertising Act.

The act provides that advertising of gambling and casinos is prohibited except in locations where gambling takes place. The Consumer Protection Board had imposed a fine on AS Videomat Casino Group for violating that provision. The board ruled that Videomat's use of a poster featuring the phrase 'With best wishes for a new year' and its trademark CASINO VIDEOMAT on a street near one of its gambling centres was prohibited advertising. The board came to the same conclusion in respect of Videomat's use of the trademarks CASINO VIDEOMAT and OPEN FOR WINNERS in displays in the windows of its gambling centres. Videomat appealed.

The main issue to be determined was whether the poster combining the greeting and the trademark CASINO VIDEOMAT, and the window display were advertising. The Advertising Act defines 'advertising' as information that is (i) made public for the purpose of increasing the sale of products or services, promoting an event or idea or achieving other desired results in different areas, and (ii) disseminated by an advertiser for a fee or other consideration. Videomat argued that the poster featuring the phrase 'With best wishes for a new year' and the window displays could not be deemed to be advertising as they did not directly invite anybody to gamble.

The Supreme Court disagreed and upheld the board's decision. It reasoned that as the poster also featured Videomat's trademark, it must be considered as advertising. The court explained that the combination of the greeting and the mark was intended to give people a positive image of the company operating under that trademark. It also stated that although the slogan OPEN FOR WINNERS is a registered trademark and Videomat was entitled to offer its services under that mark, the restrictions of the Advertising Act had to be taken into account. The court agreed with the position of the board that OPEN FOR WINNERS was an invitation to gamble as it suggested the possibility of winning.

Noting that the act does not define precisely what should be deemed to be a location where gambling takes place, the court clarified that such a location is a room where games of chance and betting are organized. Thus, advertising in the street and even in window displays was prohibited advertising.

Kaie Puur, Käosaar & Co, Tallinn

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