International Advertising Clearance - May 2004 - GALA

Comparative advertising is prescribed by the Croatian Consumers' Protection
Law enacted in 2003. Its provisions referring to comparative advertising are
basically in line the EC directive 55/97. According to Article 89, Paragraph 4 of
the Croatian Consumers' Protection Law, Comparative advertising is considered
any advertising, which with the purpose of promoting a certain good or service,
directly or indirectly refers to a competitor, or which directly or indirectly refers to
a competing good or service.
Q: If yes, what are the major restrictions and regulations with respect to such competitive
comparisons?
A. Comparative advertising is permitted if it meets the requirements
prescribed in Article 92 of the Croatian Consumers' Protection Law.
According to this provision, comparative advertising shall be allowed if: (i)
it is not misleading, (ii) it compares goods or services meeting the same
needs or intended for the same purpose, (iii) it objectively compares one
or more material, relevant, comparable and verifiable features of those
goods or services, (iv) it does not create confusion in the market place
between the advertiser and the competitor, (v) it does not discredit or
denigrate the trademarks, trade names or other distinguishing signs of a
competitor, (vi) for products with designation of origin, it relates to
products with the same designation, (vii) it does not take unfair
advantage of the trademark or other distinguishing signs of a competitor,
(viii) it does not take unfair advantage of the designation of origin of a
competitor, (ix) it does not present goods or services as imitations or
replicas of goods or services bearing a protected trademark or trade
name.
If comparative advertising refers to products and services within a special
offer, the ad should clearly show the duration of the special offer and
whether the purchase depends on the availability of the product or
service.
Q: Is pre-existing substantiation required for claims made in an advertisement?
A: No
It is not required to have the substantiation ready in advance, although it may be
advisable in certain cases. The substantiation should be presented upon request,
Court's request in particular. In fact, Article 90 of the Croatian Consumers'
Protection Law prescribes for a rebuttable presumption according to which
claims made in advertising will be considered incorrect if not proven otherwise. In
case of dispute, at the first hearing the advertiser will be invited to provide
evidence on the correctness of the contentious claims within seven days. If the
advertiser does not prove that the claims are correct, it will be considered that
the claims are incorrect. Considering the rather short term of seven days, it may
be advisable to have such evidence prepared.
Q: Are there any products or services that cannot be offered in certain media?