Out-Law News 1 min. read

OFT wins appeal in Belgium against misleading marketer


The Brussels Court of Appeal has rejected an appeal against a landmark ruling in favour of the UK's Office of Fair Trading, confirming the OFT's view that mailings sent to UK consumers by Belgian company D Duchesne SA were misleading.

The OFT took the first ever cross-border court action in Europe against D Duchesne SA in 2004. The OFT obtained an injunction against the company in the commercial court in Belgium to stop the trader from making misleading prize notifications in connection with its home shopping catalogue business.

D Duchesne SA appealed against the injunction but the Court of Appeal agreed with the OFT's view that the mailings were misleading, and upheld the original ruling.

D Duchesne SA, trading in the UK under the names 'TV Direct Distribution' and 'Just 4 You', had sent millions of mailings to UK consumers. The mailings led consumers to believe that they had won a considerable cash prize, usually £10,000, and that they could only claim this prize if they bought a product from the catalogue enclosed with the mailing.

The vast majority of recipients of the mailing were unlikely to receive the cash prize they thought they had won, as responding to the mailing only guaranteed a consumer entry into a draw for the prize in question. Hundreds of consumers complained to the OFT that they had been misled by the mailings.

The OFT brought proceedings in Brussels for breaches of the Belgian and English implementation of the Misleading Advertising Directive, which provides protection against misleading and unacceptable comparative advertisements.

Under the Injunctions Directive (implemented in the UK as part of the Enterprise Act of 2002), the OFT is empowered to enforce the misleading advertising laws of another member state and apply to their courts for an injunction to end continued publication of misleading advertisements in the UK.

The OFT argued in Belgium that the company's prize notifications were misleading and unfairly persuaded recipients to buy its products. Approximately one million mailings per month were sent to UK consumers, with D Duchesne SA receiving 4,000 orders per day from its catalogues.

Welcoming the judgment, Christine Wade, Director of Consumer Regulation Enforcement, said:  "This ruling sends a clear message to companies sending similarly misleading mail shots that they are unacceptable. We will continue to work to protect consumers from deceptive, dishonest and misleading marketing practices, whether they originate in the UK or elsewhere."

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