The Court said that the restrictions can apply to products'
protected indications of origin, such as 'champagne' or 'parma
ham'.
The Comparative Advertising Directive is designed to protect
companies from unfair treatment in advertising produced by rivals.
It sets out rules governing how other products can be used for
comparison in advertising.
It says that comparisons must be on a like for like basis, and
that comparisons with products which have designation of origin
status, such as champagne, can only be made if the advertised
product has the same status as the product with which it is
compared.
In a ruling on the advertising of a luxury Belgian beer, the ECJ
has said that a product's advertising can fall within the
restrictions on comparative advertising even if it does not mention
a specific product. Some of the terms of the advertising were found
to break the Directive's rules protecting the designation of origin
status of wines from champagne.
Belgian brewer De Landtsheer Emmanuel produced a new beer in its
Malheur range called Malheur Brut Reserve. It was produced, said
the company, using some of the methods used in the production of
fizzy wine.
In advertising Malheur Brut Reserve, De Landtsheer Emmanuel used
some phrases associated with champagne, calling it brut, referring
to 'la methode traditionnelle', and using the term
'Champagnebier'.
The company was sued in Belgium by champagne producer Veuve
Clicquot Ponsardin and a champagne trade body, the Comite
Interprofessionnel du Vin de Champagne, who claimed that the terms
constituted unlawful comparative advertising.
The Belgian court allowed the brewer to use the words 'brut' and
'reserve', but said it had to stop using all the other terms. De
Landtsheer appealed regarding all the terms except 'champagnebier',
which it stopped using.
The Brussels Court of Appeal referred aspects of the case to the
ECJ, saying that it needed interpretation of the law if it was to
rule on the case.
The ECJ has ruled that an advert can count as comparative
advertising, and therefore be bound by the Directive, even if it
compares itself with an unnamed competitor or competitors.
"According to settled case law, in order for there to be
comparative advertising, it is sufficient for there to be a
statement referring even by implication to a competitor or to the
goods or services which he offers," said the Court's judgment. "The
test for determining whether an advertisement is comparative in
nature is thus whether it identifies, explicitly or by implication,
a competitor of the advertiser or goods or services which the
competitor offers. The mere fact that an undertaking solely refers
in its advertisement to a type of product does not mean that the
advertisement in principle falls outside the scope of the
Directive."
"Such an advertisement is capable of being comparative
advertising provided a competitor or the goods or services which it
offers may be identified as actually referred to by the
advertisement, even if only by implication," it said.
The ECJ also ruled that the Directive does not ban comparative
advertising of a product without designation of origin with a
product that does have it.
The ruling means that references to champagne or associated
terms can be judged under the rules regarding comparative
advertising, even if no specific product is mentioned. But
comparisons by advertisers of a product without designation
of origin with a product with that designation will not
automatically fall foul of the rules.
