Earlier this year in Australia, Pepsi released an ad showing a burger with a can of Coca-Cola’s Diet Coke next to it. The can is turned in such a way that only the “OK” part of the “Coke” logo is visible, giving the impression that the combination is just “OK.” Meanwhile, the ad’s text suggests that food goes better with Pepsi Max.
In Bulgaria, such an advertising campaign could lead to hefty fines from the Commission for the Protection of Competition (CPC), as it is prohibited under Article 34 of the Law on the Protection of Competition. However, there are exceptions to this rule, and it’s up to interpretation whether the Pepsi ad described above falls under one of them—or whether the Diet Coke can is subtly hidden enough to avoid undermining the prestige of the competitor.
To avoid completely prohibiting comparisons in advertising, Bulgarian law allows comparative advertising under specific conditions, provided that the advertisement:
- Is not misleading according to the CPC and does not constitute an unfair commercial practice under the Consumer Protection Act;
- Compares goods or services that satisfy the same needs or serve the same purpose;
- Objectively compares one or more essential, comparable, and representative characteristics of the goods or services, including their prices;
- Does not cause confusion between the advertiser and its competitors or between their trademarks, trade names, or other distinguishing features;
- Does not discredit or tarnish the trademarks, trade names, goods, services, or activities of competitors;
- Compares goods with the same designation of origin;
- Does not derive an unfair advantage from the reputation of a competitor’s trademark, trade name, or designation of origin;
- Does not present goods or services as imitations or copies of those protected by a trademark or name.
It can be difficult to justify that comparative advertising does not discredit or tarnish a competitor’s trademarks or business. Any comparison, whether economic or otherwise, logically leads to the exclusion of certain options, potentially damaging the image of the competitor in question. In trademark law, it’s an absolute ground for refusal of registration if a trademark merely emphasizes the quality of goods or services through terms like “best” or “only.”
In conclusion, although superlatives (“most”) can deter trademark applicants from registration, businesses can still highlight their strengths through comparative advertising, provided that it does not damage the image of the compared goods or services. This line is thin, and the criteria are not well-defined. However, discrediting is generally considered to occur if the comparison results in a loss of profit, reduced clientele (due to the impression that one product is better than the other), or similar outcomes.
One example of acceptable comparison is derived from the Fiuggi case (No. 10/1977) and the Martini case (No. 134/2007). In these cases, 1) an Italian mineral water brand advertised that it was “10 years younger than Fiuggi,” and 2) Martini advertised a cocktail as “the most popular summer cocktail.” The court ruled that these advertisements did not mislead consumers, as both brands were well-established and could substantiate their claims through sales data, reports, and popularity statistics.
Such comparisons would be considered unfair commercial practices if they mislead consumers or falsely claim superiority, allowing one company to benefit at another’s expense. In the case of the Pepsi ad, neither brand can definitively prove superiority, but the comparison is permissible as it targets products that meet the same consumer needs. It is assumed that consumers in this field are well-informed and less susceptible to the influence of comparative advertising. However, this reason alone is insufficient, and all legal requirements must be met.
In conclusion, whether comparative advertising damages a brand’s prestige or not, it certainly sparks discussion about the goods or services. In today’s world, especially online, any mention of a major brand tends to result in profit. For this reason, the saying “all publicity is good publicity” is often relevant in the field of competition law. The practice struggles to establish clear criteria for determining when a comparison truly causes reputational harm.
