Съдебна практика

  • Данни за случая
    • Национален идентификатор: Supreme Administrative Court, Judgement 9190/2020
    • Държава-членка: България
    • Общоприето наименование:N/A
    • Вид решение: Решение на върховния съд
    • Дата на решението: 09/07/2020
    • Съд: Върховен административен съд
    • Заглавие:
    • Ищец:
    • Ответник:
    • Ключови думи: misleading advertising
  • Членове от директивата
    Misleading and Comparative Advertising Directive, Article 3 Misleading and Comparative Advertising Directive, Article 3
  • Уводна бележка

    The claim that certain goods can only be bought by a certain trader is misleading if the goods can be bought by other traders operating in the same market.

  • Факти

    The following message was published on the trader's Facebook page: "Collection of short stories" “Mailbox for dirty talk " can be purchased only in store.bg". The message is followed by a link that links to the merchant's website from which the book can be ordered.

    The Commission for Protection of Competition (CPC) has imposed a sanction on the trader for misleading advertising, as it has been established that this book is also offered for sale by other traders. A three-member panel of the Supreme Administrative Court (SAC) upheld the CPC's decision on the violation but reduced the amount of the sanction imposed.

  • Правен въпрос

    What is the implication of the word "only" in the specified advertisement and in which cases an advertisement containing this word would be misleading?

  • Решение

    The SAC considers that in order for there to be misleading advertising, the following elements need to be present:

    1. to establish the existence of advertising,

    2. the message to mislead or be able to mislead the persons it reaches and

    3. to be able to influence their economic behaviour, thus causing or possibly causing harm to a competitor.

    In the present case, the word 'only' used implies the exclusivity of the right to distribute the book and the inability to purchase it from another trader. In this way, the statement encourages the recipients of the advertisement to buy the book from this particular retailer, for which they are additionally stimulated by the link linking to his site. This creates an unjustified competitive advantage for the trader, which may harm its competitors. In this case, it is irrelevant that the number of persons actually visiting the trader's Facebook page is only 134.

    The CPC and the SAC reject the trader's allegations as irrelevant that the disputed publication was created by his employee at her discretion, outside her duties, and during a period when she was on maternity leave. The Court held that once the site was used by the trader, it did not matter which of his employees created the publication and for what reasons.

    URL: http://www.sac.government.bg/court22.nsf/d038edcf49190344c2256b7600367606/053f33a7bb99992bc22585990040f5f3?OpenDocument

    Пълен текст: Пълен текст

  • Свързани случаи

    Няма налични резултати

  • Правна литература

    Няма налични резултати

  • Резултат

    The Supreme Administrative Court, a five-member panel, upheld the decision of the Supreme Administrative Court, a three-member panel, which upheld the CPC's decision in the part that established misleading advertising but reduced the property sanction imposed on the trader.