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Comparative advertising is a marketing strategy in which a company's product or service is presented as superior when compared to a competitor's. German Supermarket Aldi filed a case against Dunnes for campaigning for certain comparative advertisements which infringe the trademark.
In between June to August 2013 Dunnes ran a comparative advertisement comparing its products with competitors namely Lidl, SuperValu, Tesco and Aldi.15 specific shelf edge labels, banners, slogans were accompanied by the words “Aldi Match” in the ads. Aldi claimed that the advertisements used its trademark and logos. Further Aldi claimed that the advertisements are misleading and subject to enforcement proceedings. The case was filed in the High Court and then the Court of Appeal reversed the Judgment. Afterwards, the Supreme Court gave orders.
The plaintiff based his claims under2007 Regulations, which implement the provisions of Directive 2006/114/EC concerning misleading and comparative advertising (“the 2006 Directive”). The Trademarks Act 1996 andArticles 6 and 7 of the Unfair Commercial Practices Directive are applied to conclude the case. While analyzing the case The Irish Supreme Court referred to the case law Lidl SNCvVierzon Distribution.
In the case between German Supermarket Aldi and Irish retail chain Dunnes stores, The High Court ordered the defendant to cease the use of plaintiff’s trademark and product in any comparative advertisements which is unlawful in law. Further, the Court ordered the defendant to pay the costs to the plaintiff.
The Court of Appeal favoured comparison based on price. The Court observed that the High Court’s findings under Regulations 4(2) (d) and (c) were flawed but upheld the judgment of banning the banners. The Supreme Court explained misleading advertisements under the light of the law. In the above courts, SCL (Specific Comparison labels) and SEL (Shelf Edge Labels) were considered in every product in issue.
The Supreme Court said that comparative advertising was permitted under a 2007 statute which implemented the EU’s Directive 2006/114/EC into Irish law. According to the court, the use of another party’s trademark in the comparative advertising was permitted if the ads were accurate and did not mislead the consumer. On May 28, the Court decided that SCL ads of toilet paper and anti-wrinkle day cream by Dunnes are not permitted as they are not comparable. Hence, it amounts to trademark infringement. Other SEL and SCL ads were permitted under the Irish law.