International Advertising Clearance - May 2004 - GALA

A: French law recently implemented the EU Directive on comparative advertising (in
2001). The main difference arising from the transposition is the removal of the obligation to
inform the competitor/target about the comparative advertising campaign prior to its
launch. Further, implicit advertising is now included in the notion of comparative
advertising (i.e., advertisements which do not expressly name the competitor but which
allow to identify it).
Basically, the following requirements apply :
- the ad should compare products or services that have the same purpose
- the ad should be truthful and fair, it should not be misleading
- the comparison should be objective
- the comparison should relate to essential, significant, pertinent and verifiable
characteristics of the products or services, which may include the price
- the advertiser should be able to substantiate his claims
Q: Is pre-existing substantiation required for claims made in an advertisement ?
A: The advertiser should be able to substantiate his/her claim, within a short period of
time after it is requested.
Q: Are there any products or services that cannot be offered in certain media ?
A: Yes, the general principle is as follows :
TV : Yes : Tobacco, alcoholic beverages, prescription drugs,
books, movies, press, retail distribution
Radio : Yes : Tobacco, prescription drugs
Internet : Yes : Tobacco, prescription drugs
Print : Yes : Tobacco, prescription drugs
Outdoor : Yes : Tobacco, prescription drugs
Q: What is your country’s law on privacy and/or rights of publicity regarding the use of famous
persons in advertising without their express permission ?
A: Section 9 of the French civil code provides that “everyone has a right to the
respect of his privacy” (i.e., sentimental life, sexual practices, health, family, religion, etc.).
Case law is developing that celebrities (as other individuals) have a right on their image
and can control the use made of their image. This rule is not limited to pictures taken in
private places, and this protection also applies to the use of doubles / look-alikes which is
prohibited without prior authorization of the celebrity, names and, we believe would also
apply to the imitation or use of the voice of a celebrity.
Q: What is your country’s law on the use of other people’s products in advertising without the
product owner’s permission ?
A: Promoting an offer in France by using the competitors’ trademarks is only
authorized in case of (i) comparative advertising, (ii) the sale of products bearing such
trademark and legitimately acquired and (iii) the sale of products that are compatible
accessories of another product bearing such trademark.