The law applicable to comparative advertising in Italy

27 June 2011

Rita Tardiolo, Eleonora Rosati

There are three main sets of rules applicable to comparative advertising in Italy.

1) Legislative Decree no. 145, on 2 August 2007 (the “Legislative Decree”), which implemented Directive 2005/29/EC [1] (the “Unfair Commercial Practices Directive”) into the Italian legal system.
According to Article 4, paragraph 1, of the Legislative Decree, comparative advertising shall be permitted when this:
(a) is not misleading within the meaning of Articles 21, 22 and 23 of the Legislative Decree no. 206, on September 6 2005 (“Consumer Code”)
(b) compares goods or services meeting the same needs or intended for the same purpose;
(c) objectively compares one or more material, relevant, verifiable and representative features, of those goods and services, which may include price;
(d) does not create confusion among traders, between the advertiser and a competitor or between the advertiser’s trademarks, trade names, other distinguishing marks, goods or services and those of a competitor.
(e) does not discredit or denigrate the trade marks, trade names, other distinguishing marks, goods, services, activities, or circumstances of a competitor;
(f) for products with designation of origin, relates in each case to products with the same designation;
(g) does not take unfair advantage of the reputation of a trade mark, trade name or other distinguishing marks of a competitor or of the designation of origin of competing products;
(h) does not present goods or services as imitations or replicas of goods or services bearing a registered trade mark or trade name.
Any violations of these provisions can be enforced before the Autorità Garante della Concorrenza e del Mercato (“Italian Competition Authority”).

2) The Italian Advertising Code is a set of private rules which are mandatory only for those who are members of the Italian Self-Regulation Association of Marketing Communication (however since in Italy all the media are associated, generally, any advertising on TV, radio, press can be judged according to this set of rules).  The principles laid down by Article 15 of the Code with regard to comparative advertising are very similar to those set forth by the Legislative Decree. Any violation of the Code’s provisions can be enforced before the Giurì dell’Autodisciplina Pubblicitaria (“Italian Advertising Authority”).

3) Article 2598 of the Italian Civil Code, concerning unfair competition, which states that: “acts of unfair competitions are performed by whoever: (…) 3) avails himself directly or indirectly of any other means which do not conform to the principles of correct behaviour in the trade and are likely to injure a competitor’s business”.
Comparative advertising which does not comply with the principles mentioned above has often been deemed to amount to unfair competition. Proceedings relating to unfair competition are heard before ordinary courts.

Achieving the L’Oréal result through a different path

In the light of the above, it is apparent that Italian consumers and competitors can rely upon several legal tools to receive protection against the adverse effects which might arise from comparative advertising.  In particular, the Italian Competition Authority has consistently concentrated its efforts in preventing consumers being potentially misled by comparative advertising which does not comply with the requirements laid down by Article 4 of the Legislative Decree.
In the recent Life-Antirughe Freeze 24/7 [2] decision , the Italian Competition Authority had to assess a case which presented a few similarities with the decision of the Court of Justice of the European Union (CJEU) in L’Oréal. [3] The company Life had produced and started marketing its new anti-wrinkle cream, known as Freeze 24/7, claiming that, by using it, consumers might have obtained the same results as those of Botox-based treatments. As is well-known, Botox is a medicine (as well as a registered Community trade mark) which is injected into muscles and used, inter alia, to improve the look of moderate to severe frown lines between the eyebrows for a short period of time. The Italian Competition Authority held that the comparison between Freeze 24/7 and Botox was unlawful, in that it related to products which are used in different ways and meet different needs. Even if it was also apparent that Freeze 24/7, by setting a comparison with Botox, had tried to ride on the coat-tails of the mark Botox, in order to benefit from its power of attraction, reputation and prestige (according to the wording of the L’Oréal decision), the Italian Competition Authority did not need to rely upon trade mark-related arguments to reach its decision. Therefore, just by referring just to the Unfair Commercial Practices Directive, the Italian Competition Authority achieved a fair result, without the need to refer to the controversial decision in L’Oréal.

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 [1] Amending Directives 84/450/EEC and 97/55/EC.
 [2] Decision 8 January 2009, No. 19390.
 
[3] Case C-487/07, L’Oréal and Others, 18 June 2009.

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