Comparative advertising as an unfair commercial practice 

Source: https://www.adsoftheworld.com/campaigns/tastes-ok

Earlier this year, Pepsi ran an ad in Australia showing a burger next to a can of Coca-Cola's Diet Coke. The can, however, is turned upside down so that only the "OK" part of "Coke" is visible, giving the viewer the impression that the burger and the Coke are just an OK combination. However, in the right corner, there is a caption that says the meal goes better with Pepsi Max.

In Bulgaria, such an advertising campaign could cost a hefty fine of Competition Commission, since according to Art. 34 of the Law on Protection of Competition (LPC) it is prohibited. However, there are a number of exceptions to this rule and we leave it to you to judge whether the above-described Pepsi advertising campaign is one of them (or whether the can of Diet Coke is so hidden that it is both clear what it is and cannot be confirmed with certainty that Pepsi is "damaging the prestige" of its competitor).

In order not to completely limit comparison as a method of advertising, the legislator in Bulgaria has concluded that the matter in question is permitted in the following cases, as long as the advertisement:

1. is not misleading within the meaning of the LPC and is not an unfair commercial practice within the meaning of the Consumer Protection Act;

2. compares goods or services that satisfy the same needs or are intended for the same purpose;

3. objectively compares one or more characteristics of the goods and services that are material, comparable and representative of those goods and services, including their prices;

4. does not lead to confusion of the advertiser with its competitors or of the advertiser's trademarks, trade names, other distinctive signs, goods or services with those of its competitors;

5. does not discredit or tarnish the trademarks, trade names, other distinctive signs, goods, services, activities or position of competitors;

6. compares goods with the same designation of origin;

7. does not take unfair advantage of the reputation of the trademark, trade name or other distinctive features of competitors or of the designation of origin of competing goods;

8. does not present the goods or services as an imitation or copy of goods or services with a registered trademark or name.

However, it is difficult to justify that comparative advertising does not discredit or tarnish the trademarks, trade names, other distinctive signs, goods, services, activities or position of competitors. Every comparison, whether made for economic or other purposes, leads (psycho)logically to the exclusion of one or more possibilities. from those provided for comparison and damages the image of the "loser" of this comparison, causing the "winner" to put him in the shade. Moreover, as an absolute ground for refusal of registration of a trademark (Art. 11, para. 1, item 4 of the LMGO) it has been introduced that a trademark shall not be registered which consists exclusively of highlighting the qualities of the goods/services through terms such as "best", "only" etc. similar degrees of comparison.

The conclusion is that Although comparisons, particularly superlatives ("most"), deter applicants from registering their trademarks, they can claim and highlight their positive qualities through comparative advertising, as long as they do not damage the image of the goods/services with which they are compared.The line for this is thin and there are no precisely defined criteria, but practice assumes that such discrediting and tarnishing will be present if the advertising leads to a decline in profits, reduced clientele (precisely as a result of a mistake due to the comparison and the created belief that a given product is, for example, better than the selected one), etc.

An example of a permissible comparison is derived from the Fiuggi case, No. 10/1977 and the Martini case No. 134/2007, in which cases 1) An Italian mineral water advertised that it was “10 years younger than Fiuggi” and 2) Martini advertised a cocktail that was “the most popular summer cocktail”. The court concluded that the advertising was not likely to mislead consumers, since the brands had established themselves as leaders in their fields and lived up to the claims made in their advertisements – this was proven, for example, by sales, reports, popularity statistics, etc.

The above comparisons would be considered unfair commercial practices if they misled consumers or made false claims, thereby allowing companies to profit at someone else's expense. In the case of Pepsi's advertising, it cannot be said that one or the other can prove with certainty that they are better, but in the end Advertising is permitted as long as it compares goods or services that satisfy the same needs or are intended for the same purpose – it is expected that the consumer's high level of awareness of the goods/services in the field they are researching cannot be so easily influenced by advertisingHowever, this reason is not sufficient and the remaining legal requirements must also be cumulatively fulfilled.

In conclusion, Regardless of whether or not comparative advertising damages the prestige of a brand, advertising creates an occasion for the goods/services to be discussed repeatedly.. And today we know that every mention, especially on the Internet, and especially of big brands, brings profit. For this reason, the proverb "every evil for a good" is diluted in the sphere of competition and practice loses direction, remaining with its hands tied, without the possibility of setting clear criteria for when a comparison leads to image damage.