Misleading and Comparative Advertising Directive, Article 4 Misleading and Comparative Advertising Directive, Article 4

The sponsored link on a website to an article which contains a comparison between the products of two competitors is not illegal comparative advertising since it complies with all the conditions to which comparative advertising is subject. Comparative advertising in conformity with the conditions laid down by law is permitted and thus, contains no trademark infringement by analogous application of the ECJ’s reasoning in the Interflora-judgment.

The producer of an infrared sauna places a link on his website (also to be consulted via Google AdWords) to an article that states that his infrared sauna is a cheaper alternative than the infrared sauna of a competitor. The latter business is challenging the sponsored link as forbidden comparative advertising that creates confusion between the parties’ products and gives rise to trademark infringements.

Is a sponsored link placed on a website, which refers to an article that contains a comparison between products comparative advertising that is permitted?

The Court of Appeal evaluates the advertising in the light of the conditions for permitted comparative advertising and finds that there is no infringement. The advertising is based on objective price comparison and creates no confusion between the producers of the products. Comparative advertising that complies with all the conditions imposed by law does not constitute as a trademark infringement either.

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The Court of Appeal concluded that the comparative advertising complied with the conditions imposed by law and hence, that there was no trademark infringement.