COMPARATIVE ADVERTISING

Comparative advertising is defined by Article L. 122-1 of the Commercial Code (former Article L. 121-8), as advertising “which compares goods or services by identifying, implicitly or explicitly, a competitor or goods or services offered by a competitor“.

According to this article, in order to be lawful, comparative advertising must meet the following conditions:

– not be misleading or deceptive;
it compares goods or services meeting the same needs or intended for the same purpose;
it objectively compares one or more material, relevant, verifiable and representative features of those goods and services, which may include price;

Article L. 122-2 of the Consumer Code specifies that comparative advertising cannot:

” 1. Take unfair advantage of the reputation attached to a trademark, trade or service mark, a trade name, other distinctive signs of a competitor or the appellation of origin as well as the protected geographical indication of a competing product;
it does not discredit or denigrate the trade marks, trade names, other distinguishing marks, goods, services, activities, or circumstances of a competitor;
it does not create confusion in the market place between the advertiser and a competitor or between the advertiser’s trade marks, trade names, other distinguishing marks, goods or services and those of a competitor;
4. Presenting goods or services as an imitation or reproduction of a good or service benefiting from a protected trademark or trade name.”

In case of violation of the legal conditions, several actions can be taken either by your competitors and/or by the Economic Administration, and you face different sanctions:

The order to pay damages in the event of unfair competition, on the basis of Article 1240 of the Civil Code;

• criminal sanctions where comparative advertising constitutes a deceptive commercial practice, the advertiser incurs uimprisonment for two years and a fine of 300,000 euros. The amount of the fine may be increased to:10% of the average annual turnover, calculated on the last three annual turnover figures known at the date of the facts, or to 50% of the expenses incurred for the realization of the advertising or practice constituting the offence.

• Four years’ imprisonment and a fine of 400,000 euros in the event of trademark infringement.

If you want to have comparative advertisements validated before distribution by a specialist lawyer or if you are the victim of illegal comparative advertising, which you consider to be unfair, denigrating or defamatory, do not hesitate to ask us your questions: our first telephone appointment is free of charge.