Comparative advertising is permissible in Poland, but strict rules must be followed
Advertising is a way of disseminating information about an entity and its goods and services. It refers to a special type of information which encourages consumers not only to buy certain goods or services, but also to choose a particular entity to provide them. The crucial issue is to determine whether information is merely objective information, or whether it is particular information that is intended to persuade potential consumers (ie, advertising). Defining ‘advertising’ This form of market activity refers directly to the basic rights of two types of participant in market activity: companies and consumers. They both have the right to information in its broadest sense. While for companies it is crucial to disseminate the right information to the public in its most effective form, for consumers and other economic entities participating in the market, the quality and method of disseminating the information prevail. They expect the fair and honest transfer of information. These conflicting interests are regulated by laws which aim to strike the right balance and set down basic standards which allow all market participants to achieve their goals. Other forms of advertising that can be used to disseminate special information and to reflect economic freedom are the subject of legal regulation. The main act dealing with advertising is the Unfair Competition Act (April 16 1993, Journal of Laws 03.153.1503). The Polish legislature did not establish a general legal definition of ‘advertising’. According to the Supreme Court (V CSK 83/2005, January 26 2006), ‘advertising’ is any information directed to potential customers which refers to goods and services as well as to the business offering them. Its aim is to encourage and convince the addressee to buy such goods and services. Moreover, advertising can persuade consumers both directly and indirectly by building up a suggestive picture. Undoubtedly, advertising is of a subjective and encouraging nature, with the power to influence the decisions of others. Based on this assumption, it is clear that the scope of the concept includes any activities undertaken by the business that allow it to influence market demand by broadening potential clients’ knowledge of the offered goods, and to do so intentionally to encourage them to buy such goods from the named source. Unfair advertising The legislature has tried to indicate the areas of advertising activity in which the interests of other market participants or the public are threatened. According to Article 16.1. of the Unfair Competition Act, acts of unfair competition in the advertising field comprise the following: • advertising that is contrary to the law or good practice, or that offends human dignity; • advertising that misleads the consumer in order to influence his or her decision to purchase a product or service; • advertising that appeals to consumers’ emotions by provoking fear or exploiting superstitions; • statements that encourage the purchase of products or services by creating the impression of giving neutral information; and • advertising that significantly interferes with privacy – in particular, harassing consumers in public places, sending unsolicited products at the consumer’s expense or abusing a technical means of communication. When assessing whether advertising is misleading, all of its elements should be taken into account, in particular those related to the quantity, quality, components, manufacturing method, usefulness, possible use, repair or maintenance of the advertised product, as well as the consumer’s behaviour. Comparative advertising ‘Comparative advertising’ is advertising that, by referring to the offering of a competitor, aims to inform the consumer that the advertiser’s offering is equivalent to or even better than that of a competitor. The most typical result of such advertising is to make consumers believe that the competitive product is worse, or at least no better, than the advertiser’s product. Companies can face major difficulties when they are mentioned in comparative advertising, as their goods or services are directly compared to those of another party, and they have no opportunity to influence or comment on such comparison. Although recently it has become more common for companies to communicate with their clients directly and more effectively, this is also very controversial. Even before the Unfair Competition Act entered into force, the Warsaw Appeal Court, in a May 8 1992 decision, acknowledged that critical comparative advertising was recognised as an act of unfair competition as it was contrary to good practice. Once the Unfair Competition Act came into force, comparative advertising was recognised as a forbidden act of unfair competition unless the information provided to consumers fulfilled the requirements of truth and utility. However, the courts granted exceptions very widely, resulting in a situation where the common rule forbidding comparative advertising became the exception.
This situation lasted until legislative amendments entered into force through an act of March 16 2000, which implemented EU Directive 97/55/EC amending the EU Misleading Advertising Directive (84/450/ EEC) in order to include comparative advertising. The measures implemented into Polish law are almost identical to Article 3a of Directive 97/55/EC. According to Article 16.3 of the Unfair Competition Act, any advertising that enables the consumer to identify, directly or indirectly, the competitor or the competitor’s products or services (ie, comparative advertising) constitutes an act of unfair competition where it is contrary to good practice. The only difference between EU law and Polish law is that the Polish legislature introduced the additional condition of being contrary to good practice in order to consider comparative advertising to be illegal. According to the act, comparative advertising shall not be contrary to good practice if it fulfils the following requirements: • The advertisement is not misleading. • It compares, in a fair and verifiable way, products or services meeting the same needs or intended for the same purpose. • It objectively compares one or several material, characteristic, verifiable and typical features of the products and services, including the price. • It does not lead to confusion in the marketplace between the advertiser and its competitor or between their products or services, trademarks, trade names or other distinguishing marks. • it does not discredit the products, services, activities, trademarks, trade names, products, services, activities or circumstances of a competitor. • In relation to products with a geographical designation, it relates always to products with the same designation. • It does not take unfair advantage of the reputation of a trademark, trade name or other distinguishing mark of the competitor or of the geographical designation of the competing products. • It does not present products or services as an imitation or replica of products or services bearing the protected trademark or another distinguishing designation. In addition, according to Article 16.4 of the Unfair Competition Act, comparative advertising in connection with a special offer should, depending on its terms, clearly and unequivocally indicate the date on which the offer expires, or contain information that the offer is valid while stocks last or until the service is no longer rendered. Further, where the special offer is not yet available, the advertisement should also indicate the date from which the special price or other specific terms of the offer will be available. The normal meaning of ‘comparative advertising’ refers to the concept of ‘competitors’ being narrowed to only those entrepreneurs competing on the relevant market. As mentioned above, in order for an advertisement to be recognised as comparative advertising, the information must indicate, directly or indirectly, the competitor or a comparison to its products or services which are placed on the same relevant market as the products or services being advertised. A direct indication can be made by using the competitor’s logo, trademark or other individual designation or its products or services. An indirect indication uses circumstances referring to the competitor and its products or services, such as the shape, colour or other specific elements which would be easily recognised by consumers. It is not considered to be comparative advertising if the advertisement contains system comparisons – that is, comparing ordinary or traditional things to special or extraordinary ones; nor is it comparative advertising if the advertisement stresses superior characteristics of advertised products or services, such as ‘number one’ or ‘the best’. This also applies to regular information about a competitor and its products which is not intended to increase sales, as well as to studies and surveys conducted by independent magazines or research institutes to assess products from different companies. Remedies Where an act of unfair advertising, including comparative advertising, is committed, the company whose interests are threatened or infringed may request: • cessation of the prohibited practice; • removal of the effect of the prohibited practice (eg, by making one or repeated statements regarding the appropriate content and form and repairing the damage, pursuant to general rules); • handing over the unfairly gained benefits, pursuant to general rules; and • where such act was deliberate, paying a suitable sum to the relevant social entity for the support of Polish culture or protection of national heritage. The burden of proving the veracity of statements contained in the advertising lies with the party accused of the misleading act of unfair competition. This provision is not completely in accordance with Article 1(8) of Directive 97/55/EC, amending Article 6 of the Comparative Advertising Directive, according to which it should be possible to require the advertiser to furnish evidence of the accuracy of factual claims in advertising if, taking into account the legitimate interest of the advertiser and any other parties to the proceedings, this appears appropriate in the circumstances. In the case of comparative advertising, the advertiser can be required to provide such evidence in a short timeframe. Without such regulation, market participants can enjoy only weak protection from abuse by competitors, and such protection is limited to acts of unfair competition which are misleading.