Unfair Commercial Practices Directive, Chapter 2, Section 1, Article 6, 1.

(1) Referring to the established quality of an existing product when promoting a new product, is not misleading when this only creates the impression for the average consumer that the new product would provide equal quality.

(2) It is not misleading to emphasize a certain feature of a product, while this feature has no influence on the quality of the product.

The defendant, a company producing a renowned hand-wash detergent, launched a promotional campaign for its new dishwasher tablets.

The TV commercial showed hand-wash detergent liquid flowing from the hand-wash detergent bottle into the dishwasher tablets (the flow presented in the form of stars), creating the impression (as the plaintiff claims) that the dishwasher tablets are made of the same ingredients as the hand-wash detergent liquid. Furthermore, reference was made several times to the "efficiency" of the brand.

It was also stated that the dishwasher tablets are "quickly soluble". The plaintiff argued that the degree of solubility has no influence on the quality of the washing performed, so that this advertising slogan is to be considered misleading by omission.

(1) Reference was made by the court to the provisions concerning misleading advertising, interpreted in the light of article 6 of the UCP Directive. According to the court, only the information that is "false" or "deceives or is likely to deceive" and that relates to the "main characteristics" of the product can give rise to breach of this provision. By referring to its hand-wash detergent, defendant only ensured consumers to expect the same amount of quality of the brand for the dishwasher tablets.

The court stated that one must consider the global impression made by the TV commercial from the point of view of an average consumer. In this case, the global impression of the average consumer was that the dishwasher tablets would provide equal quality for consumers. Hence, the advertisement did not create the impression that the products are identical.

(2) The court held that the use of the slogan "quickly soluble" is not misleading, as no essential information was omitted and the trader has the right to emphasize the advantages of its product.

 

(1) Is it misleading for a trader to refer to another product in its product line when promoting a new product?

(2) Is it misleading to emphasize a certain feature of a product, while this feature has no influence on the quality of the product? 

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The President of the Commercial Court decided that the defendant's advertising was not misleading.