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Comparative advertising – Comparison table – Art. L.121-9 of the French Consumer Code

By Pierre Greffe

Comparative advertising can take very varied forms. Thus, comparison lists, such as comparison tables for fragrances, may be considered comparative advertising within the meaning of Article 2 of Directive 84/450/ECC as amended by Directive 97/55 if they explicitly or by implication identify a competitor or goods or services offered by a competitor.

That does not however mean that the tables are lawful. In this case, the comparative advertising constituted of the comparison table gave the advertiser the “unfairly taken” advantage of the competing brand’s reputation, rendering this comparative advertising unlawful.

ECJ. 1st Div. 18 June 2009

NOTE

This decision is consistent with the provisions of Article L. 121-9 of the French Consumer Code. During the preparatory work for the law on comparative advertising, it was in fact specified “that comparative advertising should be restricted to an objective comparison, which ruled out all personal judgement of the characteristics of goods and services. Factors such as style, taste, flavour and smell, combined with expressions such as “milder than”, “better than”, “nicer than”, and “more fragrant than” are therefore prohibited from the comparison terms. We can therefore consider that no comparative advertising is possible for perfumes, for instance, since subjective factors are excluded. The only lawful comparison concerns the ingredients of fragrances, as objective elements, which is unlikely because such ingredients are generally trade secrets.” (French National Assembly, No. 1992. Rap. Alain Brune. Appendix Minutes of the session 19 Apr. 1991. p. 50).

A very liberal position of the European Court of Justice is nonetheless worth noting according to which “Article 3a, (1) (f) of Directive 84/450, as amended by Directive 97/55, must be construed as permitting any comparison between products not having a designation of origin with products having such a designation of origin”.

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