comparative advertising
LexInter | March 8, 2002 | 0 Comments

COMPARATIVE ADVERTISING

Article L121-8
 

 

Any advertisement that compares goods or services by identifying, implicitly or explicitly, a competitor or goods or services offered by a competitor is only lawful if:

1 ° It is not misleading or likely to mislead;

2 ° It relates to goods or services meeting the same needs or having the same objective;

3 ° It objectively compares one or more essential, relevant, verifiable and representative characteristics of these goods or services, of which the price may be part.

 

Comparative advertising of health products, Gorny, Alain, La Gazette du Palais, n ° 329, 25/11/2001, pp. 39-42Comparative advertising between two publications, n. under Court of Cassation, Commercial Chamber, June 14, 2000 , Appeal number 98-10.689, Société Optipress v Société Éditions La Rivière, Derieux, Emmanuel, Légipresse, n ° 176, 01/11/2000, pp. 180-181

Court of Cassation, Criminal Chamber May 23, 2000, Phillipe L against Public Ministry, n. Pottier, Isabelle, La Gazette du Palais, n ° 301, 27/10/2000, pp. 44-45

Note under the Paris Court of Appeal, March 25, 1999, 13th Chamber B, Txxxx, Revue de Jurisprudence de Droit des Affaires (RJDA), n ° 10, 01/10/1999, pp. 911-913

Article L121-9
(Ordinance n ° 2001-741 of 23 August 2001 art. 2 Official Journal of 25 August 2001)Comparative advertising may not:
1 ° Take undue advantage of the notoriety attached to a trademark, trade or service, 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;
2 ° Cause the discredit or denigration of the brands, trade names, other distinctive signs, goods, services, activity or situation of a competitor;
3 ° Generate confusion between the advertiser and a competitor or between the brands, trade names, other distinctive signs, goods or services of the advertiser and those of a competitor;
4 ° To present goods or services as an imitation or a reproduction of a good or a service benefiting from a trademark or a protected trade name.
Ordinance of 23 August 2001 transposing community directives on consumer law, Raymond, Guy, JCP E Semaine Juridique (corporate edition), n ° 51, 20/12/2001, pp. 2025-2027
Article L121-10
( Ordinance n ° 2001-741 of 23 August 2001 art. 3 Official Journal of 25 August 2001)

For products with a designation of origin or a protected geographical indication, comparison is only permitted between products each with the same designation or the same indication.

Article L121-11
It is forbidden to include comparative advertisements as defined in Articles L. 121-8 and L. 121-9 on packaging, invoices, transport tickets, means of payment or tickets for access to shows. or in places open to the public.
Article L121-12
(Ordinance n ° 2001-741 of 23 August 2001 art. 4 Official Journal of 25 August 2001)Without prejudice to the provisions of Article L. 121-2, the advertiser on whose behalf the comparative advertising is disseminated must be able to prove within a short time the material accuracy of the statements, indications and presentations contained in the advertising. .

Article L121-13

The insertions made in the press for an advertisement defined in articles L. 121-8 and L. 121-9 do not give rise to the application of article 13 of the law of July 29, 1881 on freedom of the press and of article 6 of law n ° 82-652 of July 29, 1982 on audiovisual communication.

Article L121-14

Without prejudice to the application of Article 1382 of the Civil Code, breaches of the provisions of Articles L. 121-8 to L. 121-12 are, where applicable, punishable by the penalties provided for, on the one hand, in Articles L. 121-1 to L. 121-7 and, on the other hand, to articles L. 716-9 and L. 716-12 of the intellectual property code.

 

A Council of State decree specifies, as necessary, the methods of application of Articles L. 121-8 to L. 121-13.

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