Written by: Halka Jaklová
Photo by: René Jakl
Would you like to use comparisons with other goods, services, or, say, manufacturers in your advertising? Then you need to know what the law allows in this area.
Thanks to the harmonization of Czech legislation with the laws of the European Union, comparative advertising is governed by the relatively recent (since 1 January 2001) 50a of the Commercial Code. Its definition corresponds to European Guideline No. 97/55/ES, on misleading advertising. At the same time, it is identical in terms of content to 2b of Law No. 40/1995 Coll., on the regulation of advertising.
Comparative advertising is any advertising that expressly, or even indirectly, identifies another competitor’s goods or services. Under the term competitor it is necessary to understand both individuals and legal entities that take part in economic competition and need not be firms or entrepreneurs. It is not necessary to specifically name another competitor, product, or service, it is enough if in any element of the advertising the competitor is recognizable, either directly or through his products. For example, we can mention the much-used advertisements of makers of laundry detergents comparing their products to other inexpensive detergents. Thanks to the fact that the public is unable to identify these so-called “cheap detergents”, comparative advertising is not involved. Nevertheless, such advertising can constitute unfair competition if it is misleading.
According to the Commercial Code, comparative advertising is a type of unfair competition, and it is possible to defend against it through various legal steps. However, the purpose of the legal regulation was not to prohibit it entirely, but also to set the conditions under which it can be permitted. So if any competitor wishes to make use of comparative advertising in promoting his product, goods, or services, he must meet all eight of the conditions stipulated in Paragraph 2 of 50a of the Commercial Code. According to these conditions, comparative advertising must not be misleading, it must involve services and goods that satisfy the same needs or must be intended for the same purpose, and so on.
Possible disputes arising from the use of comparative advertising can be resolved either in court or through the arbitration commission of the Council for Advertising.
This article was prepared in cooperation with attorney-at-law Mgr. Tomáš Krejčí.