The Truth Is Not Enough: Cases Of Comparative Advertising In Italy

Article by Marco Lucchini and Simone Verducci Galletti

Published article on WTR (n.34 December - January 2012)

While a true comparison of product performance is the cornerstone of legal protection, it is only the starting point in designing an honest and fair advertisement

In a communication-based economy, the issue of advertising is often of paramount concern for trademark owners, as companies allocate substantial marketing and communications resources to establishing a reputation or strengthening their position in the marketplace.

Comparative advertising is a straightforward tool, used to enhance the positive effects of commercial communications and thus maximise return on investment. Whereas traditional advertising spreads the message that a product or a service is good, comparative marketing communicates not only that a product or service is desirable, but also that it is better than another product. The comparison not only shows the advertiser in a favourable light, but also puts its competitor in the shade.

Due to its potentially denigrating message, comparative advertising – especially direct comparative advertising – has traditionally been mistrusted. It was prohibited in most EU countries until 1997, when the EU Comparative Advertising Directive (97/55/EC) allowed advertisers to refer explicitly to competitors .

Italy implemented the directive in 2000 and its national legislation has evolved in line with it since then. Today, comparative advertising is mainly governed by three regulations: Article 2598 of the Civil Code, Legislative Decree 145/2007 and the Code of Marketing Communication.

Article 2598 of the Civil Code defines unfair competition‟ in general terms, without reference to advertising. However, case law has exploited the broad provision under Article 2598(3) to include misleading, confusing or denigrating advertising within the definition of acts of unfair competition‟.

Legislative Decree 145/2007 implements Article 14 of the EU Unfair Commercial Practices Directive (2005/29/EC) to lay down the rules under which comparative advertising is permitted. These prescriptions, with their EU origins, are familiar to member states. In Article 4 of the decree it is stated that lawful comparative advertising:

is not misleading; compares goods or services that meet the same needs or are intended for the same purpose; objectively compares one or more material, relevant, verifiable and representative features of the goods or...

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