On 10 October 2013, the preliminary measures judge of the District court of Amsterdam rendered its judgement in the interlocutory proceedings of Koninklijke Verkade N.V. (Verkade) versus Mondelez Nederland B.V. (Mondelez). In this case both parties broadcasted a commercial about fruit biscuits.
Mondelez stated that their fruit biscuits Liga FruitCrisp are "selected on fruit taste and crispiness". Mondelez did not deny that its claim was comparative.
Verkade advertised with the claim that their fruit biscuits Sultana "tested the best". Verkade, however, denied that its claim was comparative, alleging that its research was confined to its own biscuits, the so-called internal comparison.
Verkade started preliminary injunction proceedings against the claim of Mondelez and not surprisingly Mondelez counterclaimed for an injunction on Verkade's claim.
Comparative advertising is any advertising which explicitly or by implication identifies a competitor or goods or services offered by a competitor. The restrictions on comparative advertisement are harmonized by Directive 2006/112 concerning misleading and comparative advertising (hereinafter: the Directive). The Directive is implemented in articles 6:194 – 196 of the Dutch civil Code. Article 6:194a, paragraph 2, of the Dutch Civil Code states three conditions for comparative advertisement. Firstly, misleading advertisement is prohibited. Secondly, only goods and services that serve similar needs and purposes may be compared. Thirdly, the advertisement has to compare one or more essential, relevant, controllable and representative characteristic of the goods or services in an objective manner. In accordance with article 6:195 of the Dutch Civil Code, the burden of proof in respect of the accuracy of the claim lies with the advertiser.
Mondelez' Liga FruitCrisp
The judge is of opinion that the advertisement of Mondelez is indeed comparative. Since Mondelez had admitted that in the advertisement Liga FruitCrisp is compared with Sultana, Mondelez was required to provide evidence as to the accuracy of the factual claim in the advertisement.
Mondelez instructed a market research agency for a survey amongst 160 people whether they liked Mondelez' FruitCrisp apple-cinnamon or Verkade's Sultana berries. The outcome of the survey is that 60 % of the respondents chose Mondelez' FruitCrisp over Verkade's Sultana. The judge found that the results of the survey are sufficient to make the claim plausible. Since Mondelez provided sufficient evidence, it was up to Verkade to prove why the survey is incorrect. Verkade, however, failed to do so.
Verkade's Sultana biscuits
The interesting part of the judgment relates to the counterclaim of Mondelez. Despite the fact that Verkade tried to argue that it had only compared its own biscuits (an internal comparison) the judge ruled that the claim of Verkade ("tested the best") is nevertheless qualified as indirect comparative advertisement. The reason is that the claim "tested the best" suggests that fruit biscuits of multiple companies have been compared. The public will not understand that the comparison is about Sultana biscuits only. So in the advertisement the fruit biscuits of Mondelez (and other competitors in the fruit biscuit market) are identified by implication.
Since the advertisement qualifies as indirect comparative advertising, Verkade is obligated to provide sufficient evidence as to the accuracy of the claim. However, Verkade did not perform a survey on fruit biscuits of multiple competitors as they considered their claim to be an internal comparison and therefore they could not provide any evidence.
Rules on comparative advertising can be far reaching. If the claim is objected, the advertiser needs to show its claim is correct. As far as internal comparative advertising is concerned, one needs to be careful. If this is not made sufficiently clear to the public, the claim made may be injuncted as being indirect comparative advertising.