Misleading and Comparative Advertising Directive, Article 4 Misleading and Comparative Advertising Directive, Article 4, (a) Misleading and Comparative Advertising Directive, Article 4, (c)

The omission to provide clear price details in a comparison between competitors' prices and the manufacturing price constitutes unlawful comparative advertising.

The plaintiff provides contact lenses under different suppliers' brands and under its own brand. The sale and marketing takes place both in stores and online.

The defendant provides contact lenses under different suppliers' brands online and in a few stores.

In the marketing of its contact lenses, both online and in print, the defendant has made several statements that the plaintiff has objected to, including a comparison between the plaintiff's brand and prices with the manufacturers' brands, which the defendant made available on its website.

The Market Court prohibits the defendant under the penalty of a fine, to market their products by, inter alia, the following statement:
(i) Several optical chains re-package contact lenses from the large suppliers and place their own names on them. The phenomenon is called rebranding and is mostly used to avoid price comparisons. The products are, despite name and packaging, entirely identical; or
(ii) To make other statements or claims with substantially same meaning which discredits the plaintiff and which give an impression that the defendant has lower prices on contact lenses that the plaintiff when this is not the case.

The court states that the table on the defendant's website shows how identical products are being sold under different brand names. The website contains some text stating that "here at Lensway we of course sells all contact lenses under their original name" and a table with the columns "Optical chain", "Optical Chain's brand", "Manufacturer's brands", "Price" and "Product type". The plaintiff's brand and several of the products provided under the brand EASYVISION are included in the table.

The court initially finds that, as such, comparison tables that show identical products being sold under different brands have an important consumer informative function and also encourages competition on the market. Hence, a correctly performed comparison may be of high value to consumers as guidance when choosing between different products and services. However, it is important that a comparison meets the high requirements on truthfulness, not only that the information is correct but also that the comparison is representative for the subject matter that the comparison refers to.

The court states that the table rightly shows the consumer that the plaintiff's contact lenses EASYVISION are also sold under each manufacturer's own brand. However, in the column "price" it is not clear whether the information relates to products sold by the "Optical Chains" or the "Manufacturer" or both. Therefore, the court finds that the comparison does not give the consumer an overall correct picture as certain information is lacking.

Considering that the marketing included claims that the court deems to be misleading and discrediting advertising, the court deems the marketing, viewed in its entirety, to be contrary to Section 18 of the Marketing Act.

Does the omission to provide clear price details in a comparison between competitors' prices and the manufacturing price, constitute unlawful comparative advertising?

URL: http://avgoranden.domstol.se/Files/MD_Public/Avgoranden/Domar/Dom2015-16.pdf

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As regard the claims referred to above, the court rules in favour of the defendant.