Case law

  • Case Details
    • National ID: 7J/2010
    • Member State: Portugal
    • Common Name:link
    • Decision type: Other
    • Decision date: 19/04/2010
    • Court: First Section of the ICAP ("Civil Institute for Self-Regulation in Commercial Communication") Jury for Advertising Ethics (Lisbon)
    • Subject:
    • Plaintiff: Unilever Jerónimo Martins
    • Defendant: L''Oreal Portugal
    • Keywords: labelling, misleading advertising, misleading commercial practices, misleading statements, product characteristics, self regulatory body
  • Directive Articles
    Unfair Commercial Practices Directive, Chapter 2, Article 5, 2. Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 2., (b)
  • Headnote
    (1) Giving a product’s ingredient a different, fictitious name in advertisements and on the product packaging itself will mislead the consumer, even where an asterisk is used to draw the consumer’s attention to the ingredient’s real name.

    (2) Even when the fictitious name described the ingredient’s characteristics more clearly for consumers, traders cannot use whatever synonyms they like in their advertising, based on whether those synonyms conveyed the product’s characteristics better. The use of an asterisk does not remedy this deception.
  • Facts
    The defendant advertised its deodorant product as being "Enriched with Mineralite", a fictitious name for a substance in the deodorant that was actually named "Perlite", used in many other deodorant products marketed by other traders.

    The plaintiff argued that such advertising is misleading, because the trader was presenting false information, which would likely cause the average consumer to take a transactional decision he would not have taken otherwise, due to the fact that he would have been misled into thinking that the deodorant contained an ingredient that no other deodorant product contained.

     
  • Legal issue
    It was held that:

    (1) Even though the defendant was right in saying that the name "Mineralite" describes the ingredient’s characteristics more clearly for consumers than "Perlite", this is a common concern for all technical names, and the court was not prepared to accept that traders could use whatever synonyms they chose in their advertising based on whether those synonyms conveyed the product’s characteristics better.

    (2) The trader was advertising its product as being partly composed of an ingredient that does not exist, and the use of an asterisk did not remedy this deception.

     
  • Decision

    Is the use in an advertisement of a fictitious name for a common ingredient, even where its true name is also indicated on the advertisement by means of an asterisk, misleading to the consumer?

    URL: http://www.icap.pt/icapv2/icap_site/deliberacao_detalhe.php?AG4JPQ51=ADotela9Xr1&AHAJJg5i=&AGoJNwtela9Xr1tela9Xr1=ADAJZA45&AGIJPQ5v=ADEJYw4xVmotela9Xr1

    Full text: Full text

  • Related Cases

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  • Legal Literature

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  • Result
    The defendant was ordered to cease its advertising campaign.
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