By Dr Robert Lewandowski, attorney at law (radca prawny) at Derra, Meyer & Partners in Warsaw
A district court in Częstochowa (Poland) (V GCo 10/17) issued, on 23rd February 2017, a judgment in which the court had to deliberate and to decide if a slogan used in promotion materials named “the best tablets …” can be deemed an act of unfair competition. One of the parties to these legal proceedings (the claimant) was of the opinion that the other party (the opponent) committed an act of unfair competition while using the term “the best tablets…”. Both parties to this trial were companies operating on the Polish market in the field of distributing and selling similar tablets and capsules as of their nature and prices for use within dishwashers. The claimant argued that activities launched by the opponent have a direct effect on the generated profit as the decision of consumers whether to buy or not to buy a certain product is often made upon the information contained within the advertising material and thus, according to the claimant, the information: “the best tablets…” might therefore mislead consumers. The claimant referred to some analysis carried out on their rival’s product as showing – according to him – that it does not contain some parameters proving and justifying the title “best”. As a consequence, the claimant came to the conclusion that the product of the opponent does not provide accurate information, violates the law and thus the opponent should be forbidden from using it in public towards consumers. The court treated the claimant’s motion as unfounded and ruled in favour of the opponent stating that the claimant failed to prove that the slogan “the best tablets...” was unlawful or contradictory to good morals. According to the court, any advertising aiming to mislead third parties occurs in cases in which the advertisement can be considered as incompatible with the real life situation by the majority of recipients. Moreover, an advertising message can – because of its content or form – be misleading and violate provisions of combating unfair competition if this message is able to influence the choice of the consumers and possesses an attribute of substantiality. The court adjudged that the opponent failed to show evidence proving these circumstances in the present case however the verdict of the district court is not final and may be subject to appeal. It will be seen if the interpretation of the rules created by the district court will sustain and apply to any further self–praised slogans not only with regard to products but also to services.
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