list of contributors - GALA

Table of Contents
Argentina
Page
5
Australia 8
Austria 14
Bolivia 16
Brazil 18
Canada 22
Chile 26
Colombia 30
Costa Rica 35
Croatia 38
Czech Republic 41
Denmark 42
Dominican Republic 45
Finland 46
France 51
Hungary 56
Ireland 59

Israel
Page
63
Italy 65
Japan 76
Luxembourg 79
Malaysia 81
New Zealand 84
Paraguay 89
Peru 90
Poland 94
Portugal 97
Romania 100
South Africa 106
Spain 114
Sweden 118
Switzerland 121
Turkey 123
United Kingdom 125

United States
Page
130
Uruguay 133
Venezuela 137
List of Contributors 145

ARGENTINA
Dámaso A. Pardo & Gonzalo Barboza
Pérez Alati, Grondona, Benites, Arnsten & Martínez de Hoz (h) – IP
dap@pagbam.com.ar
gb@pagbam.com.ar
www.pagbam.com.ar
1. Case Report Preminens S.A. on violation of Fair Trade Act Number 22.802
Topic: Promotions – violation of the requirement of an authorization for organizing
certain kind of promotions – Fines.
Where: National Court of Appeals for Criminal Economic Matters of Buenos Aires
When: February 2005
What Happened: The National Internal Commerce Bureau fixed a fine to the firm Preminens,
for violating section 1 d) of the Decree Number 1153/97, regulatory of the
Fair Trade Act Number 22.802.
In Section 10 of said Act, it prohibits, among other things commercial
practices, the organization of contests, drawings or competitions of any kind
in which participation is conditioned in whole or in part to a prior purchase
obligation. Furthermore, the regulatory decree 1153/97 determines the
obligation to include the phrases “No prior obligation of purchase” and
“Seek advice on the sale premises” in every promotion or contest
advertisement.
Basically, the Bureau verified that Preminens had published several
advertisements consisting of an invitation to participate in a given contest,
without complying with the inclusion of the aforesaid phrases.
So the Court determined that Prominens was liable to pay the fine provided
by Decree 1157/97, although the rules of the contest (which were not part of
the promotional article) included the required expressions.
The only modification the Court made to the judge’s first instance ruling was
the reduction of the amount of the fine imposed (from US$ 750 to US$ 300
approximately), due to the fact that Preminens had no antecedents on
violating Fair Trade Act rules.
Comments: The significant outcome of this ruling is that consumers are protected against
misleading or incomplete advertising made by organizers of promotions or
contests, which do not clearly indicate that there is no need to purchase any
good or service to participate in them. But we find the fines extremely low,
taking into account that the law allows much greater sums to be imposed.
With fines extremely low, violation is encouraged or, at least, not properly
attacked.
2. Legislation Approval of the Code of Ethics for direct and interactive marketing
Topic: Direct and Interactive Marketing
Who: National Administration for Personal Data Protection (“DNPDP”)
When: February 2005
Main Dispositions: The DNPDP approved the Code of Ethics created by the National
Association for Direct and Interactive Marketing (AMDIA), which nucleates
a big number of advisors and companies that usually carry out direct

marketing campaigns.
The Code provides for some limitations and requirements for direct
marketing practices, which every member of AMDIA would have to comply
with.
The significance of the approval by the DNPDP of this Code is that from now
on there would be a joint regulation and controlling duty between the
DNPDP, which is an official entity, and the AMDIA, that is a private
organization. In such sense, AMDIA would act as an advisor of DNPDP in
cases where one of its members is accused of abusing in any way in the use
of direct or interactive marketing practices. AMDIA´s decision would not be
binding for DNPDP, but it surely will be of great help for this Bureau, by
acting as a filter of the minor or less relevant cases, allowing the DNPDP to
focus on the more significant ones.
It should be mentioned, as well, that in a few more months a new regulation
will be issued, which will oblige database owners to register within a
Database National Registry. When that norm enters into force, members of
the AMDIA would have the benefit of being exempt from such registration
obligation, while AMDIA would have the duty to notify the existence of the
different databases of its members.
Comments: The importance of this decision can be found in the coordination and
collaboration taking place between a private and a public organization, in the
matter of punishing excesses or abuses in direct marketing practices. Usually
the bigger problem in self-regulatory bodies is that they do not provide for
any sanction or penalty other than warnings, suspensions or expulsion of the
association. These soft penalties are not effective for making advisors comply
with regulations. So a double penalty system, consisting on the ordinary selfregulatory
measures (that can impose the AMDIA) together with bigger
sanctions (fines, prison) that the DNPDP can impose to infringers, happens
to provide a complete and presumably effective solution against non desired
direct or interactive marketing.
3. Legislation Law Number 25.873. Modification on some dispositions of the
Telecommunication Act Number 19.798 – Decree Number 1563/04,
regulatory of the Law 25.873.
Topic: Personal Data Protection
Who: National Parliament (law) and President (decree)
When: Law 25.873 entered into force in February 2004 and Decree 1563/04 in
November 2005.
Main Dispositions: The modifications on the Telecommunications Act introduced by Law
Number 25.873, in combination with the provisions of its regulatory Decree
1563, basically consist on the obligation for every telecommunication service
provider to be able to provide any judge who asks for it, full access to
communications transmitted by them. Providers will also have to register
personal data of their customers and clients and register the communications
held by them during 10 years.
By these new dispositions, internet providers (among other
telecommunication providers) would be forced to store and have a registry
of every movement made by customers towards the web. That will include
websites visited, e-mails, chats and any other information that may have
traveled through the web, for the term of ten years. Said information would
have to be handed to a judge in case it is required.

The whole community gave a very hostile reception to these regulations, for
considering them an intrusion on peoples´ privacy, reason for which many
formal claims were made against them. As a consequence of these claims and
the pressure society made for it, during the present month the President has
decided to repeal the Decree 1563. And congressmen will be soon analyzing
several projects to repeal the law as well, which will configure a very positive
step back in preserving legitimate civil rights.
Comments: The referred step back made by the President is a good sign to maintain
privacy and intimacy rights in full effect. Allowing that kind of interference
in private matters would have implicated a severe violation to constitutional
guaranties and civil rights. It is still necessary to make the definitive step
back on this matter, by repealing the effects of the law too. We hope such
goal could be achieved soon.

AUSTRALIA
Peter Le Guay
Cowley Hearne Lawyers Pty Limited
pleguay@cowleyhearne.com.au
www.cowleyhearne.com.au
1. Legislation Electronic Marketing Code of Practice
Topic: Regulating e-marketing activities
Where: Australia
When: 16 March 2005
What Happened: The Australian Government has already acted to combat spam (unsolicited
commercial electronic messages with an Australian link) by passing the Spam
Act 2003. This came into effect on 10 April 2004. Electronic messages are
defined by the Act to include messages sent by e-mail, instant messaging and
Short Message Service (SMS) and Multimedia Message Service (MMS).
The E-Marketing Code of Practice (Code) has been introduced as of 16 March
2005, after consultation with the marketing and advertising industry. It
provides some higher standards of practice than those required by the Spam
Act and is binding on parties undertaking e-marketing activities. The
application of the Code is described further below. It is registered with the
Australian Communications Authority (ACA), the government authority
responsible for administering and enforcing the Spam Act.
The Code provides detail on the following key areas relating to the sending
of commercial electronic messages in an email or SMS marketing
environment in Australia:
• Obtaining and maintaining consent;
• Keeping records of consent;
• Obligations in relation to viral marketing campaigns;
• Inclusion of accurate information about senders/message
authorisers ;
• Provision and operation of a functional unsubscribe facility;
• Sending commercial electronic messages about age sensitive
material; and
• Complaints handling.
In summary, the Code automatically applies (via the Telecommunications Act
1997) to the following activities (whether an eMarketing industry member is
a signatory to the Code or not), being activities undertaken by individuals or
organisations:
• to market, promote or advertise their own goods and services
where sending or causing to send commercial electronic communications is
their sole or principal means of marketing, promoting or advertising their
own goods or services.
• who by contract or other arrangement with a person market,
advertise or promote the goods or services (including land and interests in
land and business and investment opportunities) of that person by sending
commercial electronic communications or causing them to be sent.
• who by contract or other arrangement with a person market,

advertise or promote that person as a supplier, prospective supplier,
provider or prospective provider of goods or services (including land and
interests in land and business and investment opportunities) by sending
commercial electronic communications or causing them to be sent.
To the extent that any other entities engage in the above activities, they are
bound by the provisions of this Code in respect to these activities.
Comments: Many bodies undertaking an e-marketing activity, even if not a signatory to
the Code, will need to be aware of the requirements of the Code when
sending e-marketing messages to, from or within Australia.
2. Legislation Trade Practices (Consumer Product Information Standards) (Tobacco)
Regulations 2004
Topic: New Tobacco Labelling Laws
Where: Australia
When: 1 September 2004
What Happened: On 1 September 2004 the Federal Government’s revised Trade Practices
(Consumer Product Information Standards) (Tobacco) Regulations 2004 came into
force. The Regulations provide tobacco companies with an 18 month lead in
time to comply with the new regulations (i.e. by 1 March 2006). The new
requirements are as follows:
• A new set of 14 health warnings comprising graphic images and
explanatory messages which cover 30% of the front and 90% of the back of
the pack, with graphics to appear on both the front and back of cigarette
packets.
• Inclusion of the national Quitline number and website address on the
back of the packs to provide a contact for smokers who seek assistance
with quitting.
• A new rotation system for health warnings in order to optimise
consumer learning and awareness of the health affects of smoking. This
involves a rotation of each set of 7 warnings alternatively, every 12
months. Warnings are also rotated within brands over each 12 month
period.
• Removal of the requirement for manufactures to list average levels of
tar, nicotine and carbon monoxide yields on the side of the pack. Instead
a quality information message on the health effects of chemicals and
tobacco smoke will be required on the side of the pack. This change will
highlight that there is no safe cigarette.
• A set of cigar specific health warnings to be displayed on cigar
packaging to increase the awareness of consumers of the health risks of
smoking cigars.
Comments: The new regulations apply to tobacco that is manufactured in, or imported
into Australia, but does not apply to tobacco for export or cigars sold singly.

The regulations are designed to inform consumers in a more graphic, and
perhaps confronting, manner of the health risks associated with smoking and
provide them with contact details as to where they can obtain assistance to
stop smoking. Failure to adhere to the regulations means that a tobacco
manufacturer or importer will contravene s65D (1) of the Trade Practices Act
1974 and be guilty of a criminal offence.
3. Case note: Royal Doulton (UK) Ltd v Ghosen [2004] ATMO 32
Topic: Trade Marks and Brand Extension
Where: Australia
When: June 2004
What Happened: Brand extension occurs when a well established, familiar brand name is used
for new goods or services, sometimes unrelated to the goods or services
originally sold under the brand. It provides an approach to leveraging
existing consumer perceptions of brands to a new product category, thus
reducing the risk and cost of entering that new category. It is also
increasingly relevant in the context of trade mark oppositions under s.60 of
the Trade Marks Act 1995. S.60 states:
The registration of a trade mark in respect of particular goods or services may be
opposed on the ground that:
(a) it is substantially identical with, or deceptively similar to, a trade mark that,
before the priority date for the registration of the first-mentioned trade mark in
respect of those goods or services, had acquired a reputation in Australia; and
(b) because of the reputation of that other trade mark, the use of the
first-mentioned trade mark would be likely to deceive or cause confusion.
Royal Doulton (UK) Ltd (Opponent) is the owner in Australia of the trade
mark Royal Doulton for ceramic tableware, figurines, vases, glassware and
other goods for the home. At the time of the above decision, it did not have
the trade mark registered for eyewear nor was there any evidence that it had
sold those goods under the trade mark in Australia. However, it successfully
opposed the registration of the trade mark by Anthony Ghosen (Applicant)
in respect of eyewear under s60.
The delegate of the Registrar of Trade Marks (Delegate) was satisfied that the
words ROYAL DOULTON were only associated with the Opponent and that
the Opponent used and licensed the trade mark for a range of goods in
Australia (though not for eyewear) and elsewhere. He referred to the
“common commercial phenomenon” of brand extension and found that “the
public is well used to the licensing of trade marks such as that of the
Opponent on a range of goods.” The fact that the Opponent had in fact sold
eyewear in the United States under the trade mark was support for the fact
that members of the Australian public might expect the Opponent to extend
its mark into the eyewear range.
The Delegate was satisfied that there was a real and tangible chance that a
substantial number of persons finding the ROYAL DOULTON mark on the
Applicant’s goods would be confused or deceived. The s60 ground of
opposition was therefore made out.
Comments: Even when on the face of it a product may seem like an unlikely brand
extension, a strong reputation in a number of products will increase the
likelihood of a successful opposition under s.60 of the Trade Marks Act.

4. Regulatory Inappropriate advertisement classification
Action
Topic: Advertising Standards Board intervention
Where: Australia
When: October 2004
What Happened: A complaint against Dulux Australia for its ‘Dulux Repel’ TVC was upheld
by the Advertising Standards Board on the grounds that it contravened the
provisions of their Code relating to violence and was unsuitable for viewing
by children.
The TVC features a female ghost chasing a man through his house. The man
runs through a doorway into another room, and the ghost tries to follow him,
by taking the most direct route - through the wall. Instead of passing
through the wall, the ghost hits the wall and gets knocked unconscious,
illustrating the strength and durability of new paint on the wall.
The Board considered that the ghost images and the accompanying “eerie”
soundtrack would be frightening and distressing to young viewers.
Dulux’s response was to state that the level of complaint was minimal
compared to the overwhelming positive reaction to the TVC. Dulux did
admit that due to some scheduling issues the TVC had run in some kids’
programs early in its on-air period “that it would have been better to avoid.”
The advertisement’s “G” rating was held to be inappropriate. The Board also
commented that the images constituted a portrayal of the threat of violence
which was not justified in the context of the product being advertised.
As a result of the decision, Dulux Australia is required to modify or
discontinue the TVC.
Comments: The complaint would not have been upheld if the advertisement had been
appropriately classified and not shown during time slots where viewing by
children was likely.
5. Regulatory
Action
Misleading or deceptive advertising
Topic: Heavy responsibility for bold marketing claims
Where: Australia
When: January 2005
What Happened: One of Australia's largest travel agencies has taken action, including
widespread corrective advertising, as a result of its use of advertising slogans
which may have been misleading or deceptive.
Flight Centre Limited, which has over 500 retail travel outlets throughout
Australia, marketed its services under the slogan "Lowest Airfares
Guaranteed". It also made representations that it could use its "Global Buying
Power" to get better airfare deals for consumers.
A number of consumers made complaints to competition watchdog, the
Australian Competition and Consumer Commission (ACCC) about the
advertising. The ACCC conducted its own investigations into the accuracy of
the slogans and formed the view that:
• the "Lowest Airfares Guaranteed" slogan was a representation that

Flight Centre's airfares were guaranteed to be the lowest available when, on
the basis of the ACCC's investigations, this was not always the case; and
• Flight Centre’s use of this slogan was misleading or deceptive in
breach of the Trade Practices Act, 1974 (Act).
In respect of the "Global Buying Power" representations, the ACCC
expressed concern that Flight Centre did not have this power because it does
not generally buy airfares in bulk, but books them individually. The ACCC
was also of the view that these representations were misleading or deceptive
in breach of the Act.
As a result of the ACCC action, Flight Centre provided the ACCC with courtenforceable
undertakings under Section 87B of the Act, on a without
admissions basis. Flight Centre accepted that some consumers may have
been misled by its representations and undertook, among other things, to:
1. cease using its "Lowest Airfares Guaranteed" slogan for 5 years in
any advertising or promotional materials;
2. cease using the "Global Buying Power" representations, without
giving prior written notice to the ACCC (allowing the ACCC to investigate
the accuracy of the claim before it is used);
3. publish 44 corrective notices in 11 major newspapers; and
4. display in the front window of each of its retail outlets, for 4 weeks,
corrective notices (at least of the size of 42cm x 29.7cm)
Flight Centre’s share price fell after the ACCC action.
In place of the “Lowest Airfares Guaranteed” slogan, Flight Centre now uses
the slogan “Price Beat Guarantee” and invites consumers to “Bring us a
competitor’s airfare and if its available we’ll beat it!”
Comments: If consumers provide details of competitors’ prices, some companies will
offer them lower prices for goods or services. However, this does not entitle
the company to represent that it guarantees the lowest prices. That
representation may lead consumers to believe that they will automatically
get the lowest price from the company, whether they bring details of
competitors’ prices or not.
When making bold representations such as "Lowest Prices Guaranteed",
companies have "a heavy responsibility" according to ACCC Chairman,
Graham Samuel, and "must ensure that they can honour their guarantee in
every case".
Companies must be able to substantiate all their advertising claims or risk
breaching the Act and attracting ACCC and/or other action.
The ACCC has indicated that it will closely monitor the travel industry and
its advertising practices.
6. Regulatory
Action
SMS Spamming
Topic: SMS Spammer fined
Where: Australia
When: April 2005
What Happened: One of Australia’s largest online automotive sales websites, carsales.com.au
Ltd, has recently been fined $6600 by the Australian Communications

Authority (ACA) for spamming, in contravention of the Spam Act 2003 (Act).
Under the Act it is illegal to send, or cause to be sent, ‘unsolicited commercial
electronic messages’ that have an Australian link. Commercial electronic messages
include emails, mobile phone text messages (SMS), multimedia messaging (MMS)
and instant messaging (iM). The Act does not cover voice or fax telemarketing. The
legislation sets out penalties of up to $1.1 million a day for repeat corporate
offenders.
The ACA took action after the activities of carsales.com.au Ltd were reported
by members of the public. Carsales.com.au Ltd had copied mobile phone
numbers from classified ads in newspapers, including the Trading Post, then
sent those people text messages promoting its services and website.
Commercial electronic messages must be sent with the recipient's consent.
The recipient may give express consent (i.e. by ‘opting in’), or consent may be
inferred from their conduct and 'existing business or other relationships'.
ACA Acting Chairman, Dr Bob Horton said “the ACA believes that those
people selling cars published their telephone numbers in classified ads only
so potential buyers could contact them”. He went on to say, “they did not
consent to receiving commercial SMS messages advertising a car sales
website from a company they had no relationship with, and who collected
their mobile phone numbers from the newspapers.”
Accordingly, no express consent had been obtained from the recipients and
the ACA took the view that consent could not have been inferred merely
because their mobile phone numbers or email addresses had been published.
There are some limited exemptions for certain business-to-business
communications.
However, carsales.com.au Ltd’s CEO Greg Roebuck said it was unfair that
his company was fined, when marketers who use call centre to contact
customers by phone were not deemed to be spamming, as the latter is far
more intrusive and unwelcome that SMS.
Since the Spam Act came into force in April last year, the ACA has required
200 businesses to amend their practices to comply with the Act. Of those
required to change their practices, three were fined by the ACA for more
substantial breaches, three were issued with formal warnings and one gave
an enforceable undertaking.
Comments: Companies and marketers need to take note when sending SMS or email or
other commercial electronic messages that they have the express consent of
the recipient to do so. Especially as spamming is not necessarily confined to
messages sent in bulk. Under Australian law a single commercial electronic
message can also be considered spam.

AUSTRIA
Stefan Kofler
Greiter Pegger Kofler & Partner
stefan.kofler@lawfirm.at
www.greiter.lawfirm.at
1. Title Tax Exemption for Sweepstakes
Topic: Law on tax exemption for sweepstakes
Where: Austria
When December 30, 2004
What Happened: In Austria, prizes from games and sweepstakes were subject to taxation. Gift
tax had to be paid on the value of the prize. Both the winner and the
organizer of the game were liable for the payment of the gift tax.
With the law of December 30, 2004, BGBl I 2004/180, tax exemption for
prizes from games and sweepstakes was introduced. Gift tax no longer has to
be paid on such prizes. The tax exemption was retroactive to January 1, 2004.
The reason for this new law was that up to then, prizes won in games run by
Austrian National Broadcasting were tax-exempt. However, prizes in games
run by private television stations were subject to tax. The Constitutional
Court objected that this was a violation of the principle of equality.
Legislation is now such that all prizes from games and sweepstakes are
exempt from taxation.
2. Title “Memory” Still Protected
Topic: Trademark protection for “Memory” for games confirmed
Where: Supreme Court, Austria
When July 6, 2004
What Happened: The plaintiff was the owner of the trademark “Memory“ for a game. The
defendant was a competitor of the plaintiff, who had also called a card game
“Memory”.
Both of the games were games where pairs had to be found from a number of
different cards. The defendant claimed that the description “Memory” for
games of this type had become customary in the established practices of the
trade.
The Supreme Court approved the claim and confirmed that the protection of
the trademark “Memory” was to remain upright. This mark had therefore, in
the opinion of the Supreme Court, not become a customary description for
such games, which would have deterred such a trademark protection. There
are a number of different names that could be used for such a game, not only
“Memory”.
In Austria the trademark “Memory” is still protected.

3. Title Pornographic Home Page
Topic: Link to pornographic home page
Where: Supreme Court, Austria
When November 18, 2003
What Happened: The defendant was the owner of a home page. On this home page there was
a link to a website with pornographic content (www.pornotreffpunkt.at). The
proprietor of the website www.pornotreffpunkt.at had violated the ecommerce
laws.
The plaintiff filed a law suit and argued that the defendant was responsible
for the violations on the linked site due to its link to that home page
(www.pornotreffpunkt.at). The defendant objected that a link to a home page
does not result in responsibility for that home page.
The Supreme Court decided that with its link to the home page
(www.pornotreffpunkt.at) the defendant had made the content of that home
page part of its own internet offer. For this reason the defendant was also
responsible for the violations of the law committed by the proprietor of the
home page www.pornotreffpunkt.at. Prerequisite for such responsibility is
that the link is designed in a way that the linked home page is integrated in
content to the other website.

BOLIVIA
Alexandra Blanco
Guevara & Gutiérrez
ablanco@gg-lex.com
www.gg-lex.com
1. Legislation /
Rules
Topic: SERVICIO NACIONAL DE PATRIMONIO DEL ESTADO (Intellectual
Property Authority) modifies structure and faculties
Who: SENAPI
When: 2005
Where: Bolivia
What Happened: Supreme Decree No. 27938 sets forth a new parameter of organization and
faculties of the SENAPI (Bolivian Intellectual Property authority).
SENAPI’s faculties under said Supreme Decree are:
- Carry out any necessary administrative acts and resolutions regarding
intellectual property;
- Declaring nullity and cancellation of actions with previous justification;
- Rule on oppositions set forth by third parties;
- Rule on all acts or omissions that involve intellectual property and apply
sanctions,
- Safeguard all provisions set forth in treaties and agreements executed
with other nations,
Comments: Said Supreme Decree sets forth a stricter control in all financial and
administrative operations. The hiring of expert and profession
personnel is included. Additionally, it sets forth that intellectual
property offices will be opened in the capitals of each department of
Bolivia.
2. Legislation /
Rules
Topic: Duplicity
Who: Jugos del Valle and Jugos del Valle S.A. de C.V.
When: 2004
Where: Bolivia
What Happened: Jugos del Valle S.A. de C.V., a Mexican company, filed to register the
trademark in Bolivia under international class # 32. The application was filed
before the SENAPI (intellectual property authority). Jugos del Valle, a Bolivian
company who registered the trademark in 1988 filed an opposition claiming
that the Mexican brand would mislead consumers by infringing Article 136 of
Decision 486 of the Andean Community. SENAPI allowed the registration of
Jugos del Valle S.A. de C.V. because Jugos del Valle (the Bolivian company)
had not paid its fees since 1988, thus dismissing the claim of opposition.
3. Legislations /
Rules
Topic: Duplicity
Who: SENAPI in the case: Cerveceria Boliviana Nacional and Union de Cervecerias
Peruanas Bakus y Johnston S.A.A

When: 2004
Where: Bolivia
What Happened: Union de Cervecerias Peruanas Bakus y Johnston S.A. a Peruvian company,
filed for registration for a three dimensional design of a beer bottle under
international class 32. Cerveceria Boliviana Nacional filed an opposition
arguing that the 3-d shape had already been registered by them and is used in
the Bolivian market. SENAPI resolved to approve the opposition presented by
Cerveceria Boliviana Nacional, and denied the Peruvian company any chance
of registration of the 3-d design.
4. Legislations /
Rules
Topic: Misleading Advertising
Who: Superintendence of Telecommunications
When: 2004
Where: Bolivia
What Happened: ENTEL filed a claim before the Superintendence of Telecommunications stating
that NUEVATEL S.A. had published misleading advertising regarding long
distance calls. It offered potential long distance users the service from any
cellular phone or land connection in any capital city of Bolivia at a certain rate.
The contestant argued that the condition of capital cities does not correspond to
provinces or departments of Bolivia, a matter that could mislead consumers.
The Superintendence ordered NUEVATEL S.A. to modify this advertisement
through publications and broadcasting in the media.
Comments: The Telecommunications Superintendence has developed very tight
control and zero tolerance over what telecommunication companies are
allowed to advertise to its consumers. With this policy it has been
trying to control and protect consumers and eliminate anti competitive
practices.
5. Legislations /
Rules
Topic: Copyright infraction
Who: Telecommunications Superintendence in the case: ECOR LTD and Cristal de
Televisión
When: 2004
Where: Bolivia
What Happened: On December 27, 2003 Cristal de Televisión, a television network, allegedly
broadcasted the movie “The Grinch” with no permission from ECOR Ltda, who
has the rights over the movie in Bolivia. A complaint was filed by ECOR Ltda
to the Telecommunications Superintendence. However, ECOR Ltda did not
have any proper evidence to demonstrate that the movie had been aired. The
Superintendence ruled that it could not issue a proper ruling without evidence.

BRAZIL
Valdir Rocha
Veirano Advogados
valdir.rocha@veirano.com.br
www.veirano.com.br
1. Title Bubbaloo – Fruit Salad
Topic: Children and Teenagers
Who: Brazilian Self-Regulation Council (due to consumers’ complaint) vs. Cadbury
Adams and J.W. Thompson
Where: Brazilian Self-Regulation Advertising Council (CONAR)
When: December 2004
Decision: Suspension
What Happened: A complaint was filed with CONAR regarding a TV commercial of the new
fruit salad flavor of Bubbaloo, a very famous brand of bubble gum in Brazil,
based on the grounds that the cited commercial, which was broadcasted
during the afternoon, induced children to chew a fruit salad bubble gum
instead of eating a real fruit salad.
Bubbaloo’s manufacturer, Cadbury Adams, alleged, in its defense, that the
purpose of the commercial in question was only to inform consumers, in an
amusing way, about the new flavor of Bubbaloo.
The Council recommended that the media suspend the broadcasting of the
commercial based on the fact that there are several bills in progress which
intend to establish restrictions on food publicity. It also asserted that the
advertisement of products which may lead consumers, especially children, to
obesity should be restricted by legislators. The Council further called
attention to the fact that although chewing gum is a product which does not
cause obesity, its association to the consumption of fruits is not acceptable.
2. Title “Promotion New Stars of the Program”
Topic: Children and Teenagers
Who: Brazilian Self-Regulation Council (on its own initiative) vs. NBC
Where: Brazilian Self-Regulation Advertising Council (CONAR)
When: June 2004
Decision: Suspension
What Happened: The President of CONAR required the Council to manifest itself in respect of
a merchandising, which was broadcasted through a TV program, regarding a
promotion entitled “New Stars of the Program”. Said promotion intended to
select children and teenagers to perform in TV advertisements and offered its
winners the award of 5 contracts in the amount of R$ 50.000,00 each
(approximately US$ 17,000.00)
It was required that each participant pay a registration fee of R$ 23,00
(approximately US$ 9.00) in order to take part in the promotion.
The president of CONAR questioned if the promotion was duly registered
with the Brazilian National Savings Bank (Caixa Econômica Federal; i.e.
CEF), since it involved participants who were minors.

NBC, in its defense, alleged that the Official Rules of the promotion were
duly registered with the Registry of Deeds and Documents of the city of São
Paulo.
CONAR recommended the suspension of the merchandising and of the
promotion due to the fact that its registration with CEF is a legal
requirement, since it entails the payment by consumers of a fee in order to
participate.
3. Title “Pepsi Twist”
Topic: Children and Teenagers
Who: Brazilian Self-Regulation Council (due to consumers’ complaint) vs. Pepsico
and Almap/BBDO
Where: Brazilian Self-Regulation Advertising Council (CONAR)
When: May 2004
Decision: Modification
What Happened: The First Chamber of CONAR, recommended (as proposed by the reporter),
by a majority vote, the modification of a TV commercial of the beverage
Pepsi Twist, in which a woman falls in love with a lemon. The last scene of
said commercial displays clothes and lemon peels being tossed on the floor
and a trembling bed.
According to consumers, the referred TV commercial is inappropriate and
excessively sensual, especially once the advertised product is consumed by
children and adolescents.
Both, Pepsico and Almap/BBDO, alleged in their defense that Pepsi Twist is
destined to the adult public and that the commercial was broadcasted at an
appropriate time. They also affirmed that the commercial’s plot was
surrealistic and that, for this reason, children would not be able to
understand it. Still, Pepsico and Almap/BBDO informed that, in respect of
the consumers’ complaints, they would stop broadcasting the final scene of
the commercial, which was the part considered excessive by the reporter.
4. Title “Speedy – Pythagoras”
Topic: Children and Teenagers
Who: Brazilian Self-Regulation Council (due to a complaint filed by a group of
consumers) vs. Telefónica and DM9DDB
Where: Brazilian Self-Regulation Advertising Council (CONAR)
When: May 2004
Decision: Modification
What Happened: Eight consumers from different towns of the States of São Paulo and Espírito
Santo, filed, with CONAR, a complaint concerning the TV commercial of the
Internet Provider SPEEDY, in which a boy receded to the Stone Age because
he did not have access to a broad band internet (service offered by SPEEDY).
Also, the consumers considered the commercial disrespectful in what
regards the image of the teacher.
Both, Telefôncia and DM9DDB alleged, in their defense, that the commercial
is humorous and that the consumers’ interpretation is not correct.
The First Chamber of CONAR, recommended the commercial’s modification,
considering that the fact that the boy becomes a troglodyte for not having
internet access could cause constraining situations.

5. Title “Faculdades Hélio Rocha”
Topic: Children and Teenagers
Who: Brazilian Self-Regulation Council (due to consumers’ complaint) vs.
Faculdades Hélio Rocha and Única
Where: Brazilian Self-Regulation Advertising Council (CONAR)
When: April 2004
Decision: Suspension aggravated by Warning to both defendants
What Happened: A consumer filed, with the Brazilian Self-Regulation Advertising Council, a
complaint regarding a TV commercial of Faculdades Hélio Rocha based on
the fact that it displayed dangerous behavior, once it showed a seven-year
old girl teaching an even younger girl how to switch on an oven. First, she
opened up the lid and turned on the gas. Then, she tried to light a match but
couldn’t. When she got ready to light the second match, the image became
frozen a narrator said: “experience is needed in order to teach”.
Única, the agency which produced the commercial, alleged, in its defense
that its intention was to alert consumers about all the risks taken by
university students.
The council recommended the suspension of the commercial aggravated by a
warning to both, Faculdades Hélio Rocha and Única.
6. Title “Is your son/ daughter going back to school with his/ her old tennis shoes?
Jô Calçados”
Topic: Children and Teenagers
Who: Brazilian Self-Regulation Council (due to a complaint filed by a group of
consumers) vs. Jô Calçados and Regional Propaganda
Where: Brazilian Self-Regulation Advertising Council (CONAR)
When: April 2003
Decision: Suspension
What Happened: A consumer filed, with CONAR, a complaint concerning the outdoor
advertisement of the shoe store “Jô Calçados”, which displayed the following
sentence: “Is your son/ daughter going back to school with his/ her old tennis shoes?
Jô Calçados”, along with a picture of a boy with his head covered by a paper
bag. The consumer called attention to the fact that the announcement
represents dangerous behavior besides being discriminatory in what regards
the social position of children.
Jô Calçados and Regional Propaganda alleged, in their defense, that the
advertisement is directed not to children, but to their parents. They also
declared that if this ad were discriminatory, all ads should be considered
discriminatory as well, except those which divulge first necessity goods.
Concerning the accusation of dangerous behavior, the defendants affirmed
that once the paper bag shown in the advertisement had two big wholes (in
the eyes positions), it did not represent dangerous behavior.
The reporter stated that, even though the advertisement was only directed to
the adult public, it was divulged on an outdoor ad and, therefore, was seen
not only by adults, but also by children and adolescents. As for the
accusations of social discriminations, he did not accept the defendants’
arguments, once that the paper bag on the head demonstrated that the boy
was ashamed of going to school wearing his old tennis shoes because he felt
humiliated in front of his friends.

In view of the above, the suspension of the advertisement was
recommended.
7. Title “Melissa do Brasil”
Topic: Children and Teenagers
Who: Superior Council of the Brazilian Self-Regulation Council vs. Grendene and
W/Brasil
Where: Brazilian Self-Regulation Advertising Council (CONAR)
When: June 2003
Decision: Modification
What Happened: The Special Council of Appeals sustained the recommendation of
modification of the advertisement campaign of “Melissa” sandals, which
displayed, in magazines, the images of dolls in sensual positions.
The complaint was filed based on a requirement sent by the Public
Prosecutor’s Office of the Childhood and Youth Defense Court of São Paulo.
The Public Prosecutor’s Office asserted, in its requirement, that Melissa’s
advertisement campaign was excessively sensual and, therefore,
inappropriate for children and adolescents. Said requirement also called
attention to the fact that the advertisement in reference could even stimulate
children’s pornography.
Grendene and W/Brasil alleged, in their defense, that the shoes identified by
trademark “Melissa” are not destined for children, but for adults and
adolescents, and that the advertisement in question was only published in
magazines which are directed for such public. They also argued that “the
images shown in the referred ad, tenuously illustrate the transformation of children
into women– moment in which the feminine feelings develop in their sweetest
manner”
CONAR, in its first instance decision, recommended the modification of the
advertisement on the grounds that the dolls shown represented the bodies of
children and pre-adolescents and that these should not be exposed to the
public in a sensual manner.
The defendants then filed an appeal against the above decision, insisting that
the models who posed for the production of the referred advertisement were
not children or pre-adolescents, as affirmed by the first instance relater, but
adolescents per se.
In order to attest the veracity of this affirmation, the defendants displayed, as
evidence, copies of the contracts entered into and by the agencies and the
models or their legal representatives.
The reporter did not accept the above arguments, stating that (i) the images
were shown in an advertisement which was divulged through magazines
offering the public the possibility of observing their details; (ii) the contracts
brought to the case as evidence did not mention the age of any of the models;
(iii) at least two of said contracts were signed by the models’ mothers; (iv) the
first instance recommendation was not, at any moment, based on the age of
the models, but on the idea transmitted (by the images) to the public, which
was of very young girls, almost children, in sensual positions.

CANADA
Wendy Reed
Geneviève Marcotte
Heenan Blaikie
wreed@heenan.ca
gmarcotte@heenan.ca
www.heenanblaikie.com
1. Title Finally! Consumer Protection Regulations Released in Ontario
Topic: Consumer protection
Where: Canada (Ontario)
When: Publication: February 2005; In Force: July 30, 2005
What Happened: Ontario’s Consumer Protection Act 2002 has sat idle, waiting to be proclaimed
into force, for over two years. In February, regulations were finally published
and a timetable set for the implementation of new consumer protection
legislation. The legislation is comprehensive, covering almost any consumer
transaction for personal or household purposes over $50, where the business,
or the consumer, is located in Ontario. Highlights include:
• Extensive disclosure requirements, stipulating what must be disclosed in
various forms of consumer agreements;
• Pre-contractual disclosure requirements for internet and remote
agreements (the latter being agreements entered into where the buyer and
seller are not in each other’s presence, e.g. direct mail);
• A discontinuation of the uniquely broad restriction against referral selling
(even friend-get-friend programs were formerly prohibited);
• Application to agreements for both goods and services;
• Negative option billing is prohibited for services, in addition to prior
prohibition applicable to goods;
• Revisions to cost of credit disclosure requirements;
• Strengthening of consumer remedies, including cancellation rights,
cooling off periods and , notably, credit card charge-backs;
• More comprehensive enforcement powers, including increased maximum
fines: An individual will be liable to a fine of not more than $50,000 or to
imprisonment for a term of not more than two years less a day, or both, and a
corporation will be liable to a fine of not more than $250,000.
Comments: Consumer protection legislation in Canada is largely a provincial concern, and
presently requirements and available remedies vary from province to
province. Ontario’s new Consumer Protection Act, 2002 is part of a movement
in Canada towards harmonization of the various pieces of provincial
consumer legislation across the nation. It puts into law commitments made
under national harmonization agreements respecting cost of credit and long
term leasing disclosure, and internet contacts, in particular.
Some provinces are moving more quickly towards harmonization than others

and, even amongst those who have implemented new legislation, there is still
not uniformity. For example, Ontario’s legislation takes a relatively neutral
approach to technology, and requires similar disclosure in most forms of
consumer agreements to what was agreed upon nationally with respect to
Internet agreements. Therefore, requirements for some types of contracts may
be more onerous in Ontario than in other provinces. Similarly, Ontario’s new
legislation allows consumers the remedy of credit card chargeback in the
context of any cancelled consumer agreement, not only Internet agreements as
has been enacted in some other provinces.
As a country, we have work to do to achieve harmonization with respect to
provincial consumer protection issues. In the interim, however, Ontario’s new
Consumer Protection Act, 2002 will likely have a significant impact on the
conduct and agreements of those engaged in consumer transactions in the
province.
2. Title Can you use publicly available commercial email addresses for unsolicited
marketing purposes?
Topic: Privacy Legislation
Where: Canada
When: December 2004
What Happened: An individual received unsolicited commercial email at his work email
address. When the complainant called the company that sent the email, he was
told that the email address was taken from his employer’s publicly available
website but that since he did not want to receive email from them he would be
removed from the list. About a month later the complainant received another
unsolicited commercial email, though from a different department of that
same company. That second department had obtained the email address
through the same means although a different website.
The complainant filed a complaint with the Canadian Privacy Commissioner
alleging a violation of the Personal Information Protection and Electronic
Documents Act (PIPEDA), Canada’s federal privacy legislation.
The Privacy Commissioner’s investigation revealed the truthfulness of the
facts as related by the complainant. When the Commissioner’s office spoke
with the employer, the employer submitted that email addresses were
“business information”, falling within the “business card” exception to
personal information under PIPEDA and that companies may thus use such
email addresses to contact employees for legitimate business reasons. The
employer conceded, however, that permission should be obtained prior to use
of the email address for any other purpose.
The Privacy Commissioner clarified that although PIPEDA does exclude the
name, title, business address and telephone number of an employee, email
addresses are not included in the list and are not within the “business card”
exception. Not falling within that exception, they are accordingly “personal
information” protected by PIPEDA. While the company and its employees, in
having the email addresses published, obviously consented to their being used
within a certain business scope, there was no consent for the use made, since it
was used outside of the scope for which it was made public.
Comments: This finding by the Privacy Commissioner is significant for two reasons.
First, it found that even information which is publicly available, if it is not
used for the purpose for which it was made public, is contrary to PIPEDA.

Second, the finding makes clear that the enumerated exceptions concerning
personal information will be read restrictively.
3. Title Francopub: The French Language Office in Quebec gets proactive to promote
good quality French in Quebec advertising
Topic: Quebec’s French-language Office launched a contest to promote the quality of
French-language in the province’s ads
Where: Québec, Canada
When: Fall 2004-Spring 2005
What Happened: This year, The Quebec French-language Office (“FLO”), the body that
regulates the use of French under the Charter of the French language, ran its first
edition of its Francopub contest. The FLO invited Quebec residents to submit
an advertisement (print, radio or television) that ran in 2004 and that
distinguishes itself by the good quality of French used in the ad.
Forty-one ads were submitted and a jury comprised of advertising industry
and FLO representatives chose the grand prize winner as well as three exaequo
mentions. Judging criteria included not only the good quality of French used
in the ad but the pride of place given to the French language. On March 22,
2005, during a Gala, the FLO awarded its prizes. The grand prize was a trip,
which was awarded through a draw among the three (3) advertising
editor/copywriters of the grand prize advertising winner. During its Gala, the
FLO also highlighted the poor quality of French-language used in some
advertising.
Those who participated in the contest by submitting an advertisement were
also eligible to win a trip for two.
The FLO announced that this would become an annual event.
Comments: This is certainly an original way to promote the good quality of Frenchlanguage
in the advertising industry. We doubt it will have any real impact
on the advertising directed to youngsters, however, which was likely one of
the objectives of the exercise. The reality is that the industry in Quebec tends
to use more and more “anglicisms” or words stemming from the web
universe.
4. Title Draft Consumer Advertising Guidelines for Marketed Health Products
Topic: Draft Guidelines to apply to consumer-directed advertising of nonprescription
drugs, including natural health products, for human use
Where: Canada
When: February 2005
What Happened: Draft Guidelines have been released that will form the basis upon which
Health Canada-endorsed pre-clearance agencies (Advertising Standards
Canada is the only the only such agency approved to date) will review and
approve advertising for non-prescription drugs and natural health products.
They will not apply to the advertising of prescription drugs to consumers,
which is still generally prohibited in Canada. The Guidelines replace the 1990
Consumer Drug Advertising Guidelines, and are designed to help advertisers
develop advertising messages that meet all the relevant provisions of the Food
and Drugs Act and Regulations and the Natural Health Products Regulations. The
Guidelines will provide advertisers with the ability to understand drug
advertising principles before advertising copy is developed and submitted for
review to Health Canada-endorsed pre-clearance agencies.

Comments: Implementation of the Guidelines, once approved, is proposed for January
2006.
5. Title Sears Deceptive Tire Marketing case
Topic: Competition Act “Ordinary Selling Price” Provisions analysed in the case of:
Commissioner of Competition v. Sears Canada Inc.
Where: Canada
When: April 1, 2005
What Happened: On April 1, 2005, the Federal Competition Tribunal ordered Sears Canada, a
department store chain, to pay a total sum of $487,000. One hundred
thousand of this was an administrative monetary penalty and $387,000
represented the Competition Bureau's legal costs. A Prohibition Order was
also made, prohibiting the automotive business division of Sears from
engaging in similar representations for a period of 10 years.
This order followed the Competition Tribunal's January 2005 decision
concluding that Sears had misled consumers with deceptive marketing
practices in 1999 and engaged in reviewable conduct contrary to Section 74.01
of the Competition Act, as a result of representations made on savings available
to consumers in the advertisement of discounts on certain tires across the
country.
The advertisements contained “save” and “percentage off” statements. For
example, Sears advertised “Save 45% our lowest prices of the year” and
advertised comparisons between Sears’ regular prices and its sale prices.
The Tribunal held that Sears had not sold a substantial volume of tires at the
purported ordinary sales price for the tires, that it had not offered them for
sale in good faith for a substantial period of time at or above the purported
"ordinary" sales price and that consumers were more likely than not to have
been influenced by the "ordinary price" representations.
The Tribunal held that Sears did not meet the good faith requirement nor the
frequency requirements of the time test for four of the five tire lines. In fact
those four lines were on sale more than 50% of the 6 month period pre-dating
the representations. The Tribunal determined the 6 month period to be a
reasonable reference period.
Comments: This was the first contested case brought before the Canadian Competition
Tribunal under the newly revised “ordinary selling price” provisions of the
Competition Act, adopted in 1999. By contrast to the United States, for
example, price advertising in Canada is an issue of frequent regulatory
attention and enforcement.
The Canadian Parliament is currently considering amendments to the
Competition Act which would substantially increase administrative monetary
penalties (up to 10 million dollars) to better deter similar deceptive marketing
practices.

CHILE
Rodrigo Albagli
Guillermo Rivas
Albagli Zaliasnik & Cia.
ralbagli@az.cl
grivas@az.cl
www.az.cl
1. Title How do we measure shine and intensity?
Topic: Misleading and Deceptive Advertising
Where: Chile
When: October 2004
What Happened: L’OREAL successfully filed a complaint before the Chilean Self–Regulatory
Advertising Council against WELLA CHILE regarding Wellas’ advertising
campaign for its shampoo product New Koleston.
Claimants argue that Wella’s advertising campaign infringes on the Chilean
Advertising Ethical Code, in particular one slogan used by respondents
saying the following: “Get ready, up to 50% more shine and intensity”.
L’OREAL claims that the Wella ad campaign did not show clinical studies
nor the process by which the data exposed in the media was obtained.
Moreover, the claimants cite other remarks used in the campaign such as
“The outcome: using the New Koleston, you’ll get results never seen before.
Perfect coverage and an intense color, durable and plenty of shine”.
Technically speaking, the claimants hold the position that such remarks must
be followed by scientific evidence and due to the fact that respondents have
made statements using figures and percentages. The ad expressed that at
least one out of 26 tones or shades of the New Koleston, is able to produce 50%
more shine and intensity in the consumer’s hair. The statement is vague and
inaccurate because respondents must identify with accuracy which tones or
shades are definitively benefited by the product.
In addition, statements made during the campaign may lead to the
misunderstanding that any and all tones or shades may be benefited by the
product, when using the wording “up to 50% more shine…”.
Certain provisions of the Chilean Advertising Ethical Code require that ads
must not show or reproduce any statements, remarks or visual presentations,
which directly or by implication, omission, ambiguity or an exaggerated
pretense, may lead the consumer to erroneous conclusions regarding the
product. Additionally, other provisions have already set the principle that if
an ad contains statements based on scientific knowledge, such as medical or
engineering, those ads must be defended based on opinions issued by those
regulatory bodies designated by the Council. In other words, in order to
prove the falsehood or truthfulness of those statements, the panel may
request a technical opinion to demonstrate the accuracy or inaccuracy of the
statements placed under judgment.
Respondents counter argued that shampoos and the like, being cosmetic
products are strictly regulated by specific government regulations, and since

no action was taken by any governmental watch dog against this ad
campaign, the current complaint should be dismissed and retaken after a
judgment has been issued by a government body. As a consequence,
respondents hold that claimants must first file a legal action before the public
health regulatory body so as to determine whether there is truly an
infringement.
While judging the first counterclaim, the Council decided as follows:
Regarding respondent argument that this Self-Regulatory Council does not
have jurisdiction to decide in this matter, the Council held the opinion that
the legal activity of the public health regulatory body was of a different
nature and function. And there is no precedence or controversy if both
bodies undertake their activity at the same time. The Council concluded that
this Self-Regulatory Council is able to judge ethical complaints regardless of
the regulatory bodies even if they belong to the government.
In deciding the question of whether the ad campaign and the slogan truly
infringed on the Ethical Code, the Council ruled that the slogan “Get ready,
up to 50% more shine and intensity” belongs to those category of statements
which necessarily must be proven scientifically in order to determine their
accuracy and truthfulness.
In examining the evidence produced by respondents the Council concluded
that there was not any single piece of evidence which could prove that the
product called New Koleston produces up to 50% more shine and intensity
and as a conclusion the Council declared the slogan an “exaggerated
pretense that may lead consumers to erroneous conclusions”, and thereby
infringing certain provisions of the Chilean Advertising Ethical Code.
Comments: The Council made a strong point. Statements or remarks using figures or
percentages require scientific demonstration. Otherwise they may lead
consumers to be misled.
2. Title This is serious!!
Topic: Deceit or confusion for consumers. Privacy rights
Where: Chile
When: October 2004
What Happened: A single person files a complaint against the Chilean National Railroad
Company and its advertising agency BBDO for a certain ad campaign
undertaken by respondents in which the claimant and her husband were
depicted in a set of photographs. The campaign basically shows people
vacationing in a certain part of Chile while making statements about the
benefits of traveling by railroad.
Claimant argues that the pictures were shot in Vancouver, Canada, and to
make this issue even more serious were used in the ad campaign without
consent.
In responding to those claims, the advertising agency held that the campaign
was their own true and independent creation, showing real pictures
belonging to the agency’s employees. Under no circumstances was the
agency’s intention to damage or deceive the audience and further that the
exclusive aim of the campaign was to show real peoples’ vacations. The
agency claimed that once they figured out the mistake, the whole campaign
came to an immediate stop.

The Council let the claimant know about the respondent’s letter and actions
and the claimant then filed additional complaints, claiming to be the sole and
lawful creator of the photographs and all intellectual rights derived therein.
Moreover, the claimants note that they never had any business relations with
the agency and the pictures are not the result of a work for hire.
Additionally, claimants filed charges for consumer deceit due to the fact that
the respondent’s campaign was intended to show certain parts and beauties
of Chile while in fact the pictures were actually shot in Vancouver, Canada.
Respondents “are deceiving not only claimants but the whole country and
also Canada”.
Section 9 of the Chilean Advertising Ethical Code has set certain principles of
respect, privacy and consent. An agency must obtain prior consent when
using material depicting natural person and may not make any statement
considered to be an endorsement of any product or service if prior consent
from the person showed was not obtained.
The Council finally confirmed all charges against the agency and determined
that the agency’s behavior seriously infringed on ethical rules set by the
Chilean Advertising Ethical Code.
Comments: Never do that again!! Prior consent is a basic rule in an advertising
campaign. Non-compliance may lead to serious legal hazards.
3. Title Big dogs fighting again. Colgate Palmolive versus Unilever
Topic: Misleading and Deceptive Advertising.
Where: Chile
When: December 2004
What Happened: Colgate files a very serious claim against Unilever. The claim states that
Unilever’s ad campaign related to the dentifrice “Pepsodent” infringes
ethical provisions set by the Chilean Ethic’s Code, leads consumer to
confusion, makes use of intellectual property owned by Colgate and its
product “Colgate Total” and finally the campaign is a rogue intent to
assimilate both products’ efficacy and features.
Claimants argue that Colgate owns intellectual property rights over the
slogan “Protection for up to 12 hours” based on the assertion that certain
products of Colgate in particular “Colgate Total” are formulated with
Triclosan and Gantrez, which allow continuous anti-germ protection for up to
12 hours not only against cavities but also against gingivitis and germs. All
these effects were scientifically proven by clinical research and the fact that
Unilever, with its product “Pepsodent” is making claims similar to those of
Colgate is grounds enough to lead consumers to make mistakes and
erroneous conclusions: “The ad campaign makes both products equal or
similar when in fact they are not”.
From the claimant’s perspective Unilever is trying to gain an unfair
advantage through this advertising campaign, which is based on
misappropriations and false statements.
One of the key provisions of the Chilean Advertising Ethical Code requires
that ads must not show or reproduce any statements, remarks or visual
presentations, which directly or by implication, omission, ambiguity or by
means of an exaggerated pretense, may lead the consumer to erroneous
conclusions regarding the product, in particular with certain features such as
nature, composition, method, date of manufacturing, purpose and coverage.

Another provision allegedly infringed upon says that when an ad contains
statements based on scientific knowledge, such as medical or engineering
remarks, those ads must be defended based on opinions issued by regulatory
bodies designated by the Council. In judging the claim, the panel may
request a technical opinion to demonstrate the accuracy or inaccuracy of the
statements placed under judgment.
Another provision cited by the claimants states that if a message conveys
descriptions and comparative arguments, the truthfulness of those messages
must be proven as soon as requested by a third party.
Finally, Colgate asserts that the Unilever campaign is taking unfair
advantage of Colgate’s goodwill.
In responding to the charges outlined above, Unilever claims to have
developed a new visual concept with no connection to Colgate’s products
and goodwill.
Basically, the objective of this “new” concept is to show to the audience that
“Pepsodent” has new features, which is exactly what the claimant claims as
its own: “protection for up to 12 hours” and the claim is technically
demonstrated accordingly by expert opinions all stating that “Pepsodent”
generates protection for up to 12 hours. Unilever’s counterattack is based on
the fact that having proven with technical evidence that “Pepsodent”’s level
of protection is accurately advertised, no ethical infringement can be claimed
by Colgate.
Unilever strongly denies having used any intellectual property assets
belonging to Colgate since its ad campaign is completely new and develops a
new visual concept. In defending its position Unilever states that Colgate
was unable to identify IP assets allegedly infringed.
The Council’s ruling in this case ultimately rejected the claim by Colgate. The
rationale for rejection was as follows: Unilever was able to demonstrate that
statements made on its campaign were technically correct. In fact, the
product Pepsodent was considered “new” and its ingredients generate
“protection for up to 12 hours, even after meals or drinking”, which are the
exact remarks put under judgment by respondents.
Regarding misappropriation by Unilever of Colgate’s Intellectual Property
resources, the Council ruled that a slogan or statement such as “protection
for up to 12 hours” represents a generic concept and as such no party may
claim exclusive rights over the use of such a phrase or slogan. By the same
token, the Council considered that Colgate did not comply with all the
requirements set by prior cases defining the scope of “goodwill”.
Comments: This is a seminal case for the Self-Regulatory Council. The Council while
judging this case made an extensive examination of all legal and ethical
concerns claimed by both parties. The final dismissal of the complaint was
based on the fact that the respondent was able to prove from a technical
standpoint the accuracy of all remarks and statements made during the
campaign. Relief has to be granted only when claimants are able to prove all
the requirements and tests to be afforded protection.

COLOMBIA
Ricardo Duarte Duarte
Duarte Garcia & Associados Ltda.
rduarte@col-law.com
www.col-law.com
1. Legislation Doctrine 051604
Topic: Difference between advertising and trademarks reminders
Who: Superintendency of Industry and Commerce
When: January 27, 2005
What Happened: The Superintendency states that advertising is a non personal commercial
communication that shows, in the media, a trademark, a good or a service of
a merchant in order to inform of their existence, to persuade or to influence
the consumer to impel sales, or to leave a memory in the consumers.
It is different than other types of communication such as a journalistic one in
which there is not a commercial purpose.
Advertising uses media to transfer its message, not necessarily mass media.
Many times these are used (for example television, radio or press) but in
other cases advertising messages are diffused through vehicles or systems
that are not mass media.
The main purpose of advertising is to highlight the trademark, the goods or
services in order to inform of their existence, to generate awareness and with
this strategy to persuade or to influence the consumer and the decision of
purchasing. Advertising highlights the attributes, conditions, qualities or
benefits of a good or service and in many cases tries to persuade the
consumers, transmitting subjective messages, by means of creating a feeling
or sensation between the consumer (receptor of the message) and the
product.
On the other hand, the trademark reminders are promotional elements,
which are goods such as ashtrays, towels, mugs, t-shirts, hats, with a
trademark stamp. The main purpose of these goods is to generate awareness
but not to persuade the consumer which is the objective of advertising.
Besides, these trademark reminders are designed to be rendered directly to
consumers and do not use mass media.
According to this difference the laws about advertising and consumer
protection are not applicable to the trademark reminders except if these
transmit information (any kind of information) about the goods or services.
Comments: This distinction between advertising and trademark reminders is very
important since rules about protection of consumers are applicable to
advertising and not to the reminders since the main purpose of these rules is
to protect the consumers from false information or of information that leads
to error. Trademark reminders are only made to generate awareness but not
to give information about the good or service.
2. Legislation Resolution 23186
Topic: Trademark confusion

Who: Superintendency of Industry and Commerce
When: December, 2004
What Happened: A Colombian company “Nacional de Chocolates” applied for the register of
the trademark KISSES to identify cereals not ready to consume. During the
publication period the company Hershey Foods Corporation filed an
opposition stating that it owns the trademark Hershey’s KISSES, which was
granted before the date of the application, in class 30 of Nice Classification,
specifically to identify cereals ready to consume.
The Superintendency stated that the trademark applied for by the Colombian
Company is very similar to the one registered by Hershey’s, “Hershey's
Kisses” besides both trademarks identify goods in the same class.
The Superintendency considered that when you compare the sign Kisses
with the trademark Hershey's Kisses, similarities are obvious, not only about
the phonetics but the concept and spelling order that could cause consumers
to be confused. The entity clarified that the sign filed by the Colombian
company reproduces the expression “Kisses” which is part of the trademark
already registered.
Also the Superintendency added that Kisses (of the Colombian Company) is
not a distinctive sign because it does not have additional elements that make
it recognizable by consumers. According to that, there’s not doubt about the
possibility of risk of confusion between the two signs.
Concluding the Superintendency states that the application reproduces the
trademark previously granted without adding other expressions that make it
distinctive.
Besides the Public Entity argued that the role of the consumer is one of the
issues, that it must be analyzed in these kinds of cases. It means that it is
necessary to consider the type of consumer who will purchase the good that
would be identified with the trademark. If the product is expensive the
consumer will be more careful about the product that he / she is purchasing
and will ask for all the necessary information about it. On the other hand,
cheap products or common products that anyone can buy in a supermarket
will not be analyzed to the same extent by consumers since they are likely to
purchase any of the products without comparing the minute details of the
trademarks.
As a result, the Superintendency denied the application stating that the signs
compared cannot co-exist in the market and to grant the application of the
Colombian Company would cause damages to the consumers and would
affect the rights of Hershey’s Foods Corporation.
Comments: What is important about this resolution is the consideration of the kind of
consumer that would purchase the goods identified with the trademark. If
the price is low the consumer would not spend time analyzing the trademark
or the product because is not going to spend a lot, but in high priced
products the consumer will be very careful since the investment is higher.
According to that the analysis of confusion of trademarks that the
Superintendency has to do is to be more careful with low priced goods. The
main purpose of the Entity is to protect the consumer from mistakes and in
this case the consumer is more vulnerable since he/she does not do the deep
analysis of the good or service.

3. Legislation Decision or sentence
Topic: Copyrights protection
Who: Supreme Court of Panama
When: February 2005
What Happened: The Colombian company Teleset was filming a reality show in Panama
(Contadora Island) called “La Isla de Los Famosos” (The famous’ island) and
participants were Colombian. The production was sued by the Panamanian
company “Coral Films” since the reality show infringed copyrights of the
format.
The quantity of the claim was one million dollars.
According to the company Coral Films, one year before the producers of
Teleset visited the locations utilized by the Company when they filmed a
reality show, they knew their games and their set, but then Teleset “decided
to film for their own" (words of Coral Film) and this is the reason why they
sued the production of Teleset.
During the course of the process the criminal judge ordered to suspend
filming of the “Island of The Famous” and seized much of the filmed
material. Two days later it annulled its decision.
According to the attorney of the Panamanian company, the Company "is the
owner of the idea and the design of the program 'Survivor' in Panama, which
he has already produced and filmed for Channels of Russia, Venezuela, Italy
and Spain.
Finally, Teleset concluded the reality show in a short period of time.
Comments: This discussion is very interesting since it is not clear if a type of format of a
TV show or program can be considered a copyright because many times they
are so diffused that any country develops it. The format of a reality show
such as “Survivor” could be considered just a format in which people have to
handle a difficult situation without food and have to compete for a prize. In
that sense, it would not be a special creation of someone’s, and anyone could
use it if it does not reproduce the specific characteristics of the show, such as
name, background, libretto, music, etc.
4. Legislation Doctrine 089482
Topic: Value Added Tax for advertising and other publications
Who: National Tax and Custom Administration (DIAN)
When: December 21, 2004
What Happened: The Association of Potato Producers” FEDEPAPA, published a book called
the “Guide to cultivate potatoes”. The Association consulted the National
Tax and Custom Administration (DIAN) about if the information published
could be considered advertising or a simple book in order to determine the
tax obligations, specially the VAT."
DIAN states that it is not allowed to specify if a particular fact or situation is
subject to the tax but can clarify the content of the law as follows:
Advertising has been regulated in Chapter II, Title IV of the Unified Concept
about V.A.T., which contains the doctrine in force related to this tax and
states the requirements to establish when a service would be considered
advertising regarding the VAT.

According to this regulation Advertising Services are “all the activities
tending to create, to design, to devise, to interpret, to publish or to divulge
ads, notices, commercials or radio spots, in order to disclose to consumers or
the public through the different mass media, such as radio, press, magazines,
television or other like media movies, fences or posters. Also the sale or rent
of spaces for advertising messages.
Likewise, services rendered by Advertising Agencies are considered
publicity, such as:
Creation of messages, campaigns and advertising pieces, market survey of
the product or service, direction of programs and librettists for a commercial
or message, analysis and advising in the advertising strategies, development
of media plan, etc.
Advertising service is subject to V.A.T. in the cases explicitly indicated in the
law. Rates are variable depending on sales amounts.
Comments: It is very important to be clear on when a publication can be considered
advertising since the situation regarding the V.A.T. is completely different.
The publications are exempt or free of V.A.T. if they have cultural or artistic
purposes. On the contrary, advertising is subject to this tax.
5. Legislation Resolution
Topic: Deceptive Advertising
Who: Superintendency of Industry and Commerce
When: November, 2004
What Happened: Superintendency of Industry and Commerce determined that five of the
biggest supermarkets induced into error the consumers offering promotions
that were not as they showed.
In one of the supermarkets one consumer bought a promotion of beers “pay
5 take 6”. The consumer divided the price paid into the number of beers and
realized that he paid for all of them and none was free.
A consumer informed the Superintendency that other supermarkets did not
respect a promotion of 15% off in famous trademark soap.
Another consumer did not receive a free recipient for buying a cake that was
offered.
Besides the Superintendency found three additional cases of products that
had a price stamped and in the till the supermarket changed to other price.
In consequence the Superintendency ordered the supermarkets to pay high
fines and to adopt measures in order to sort the situations out.
Comments: These measures taken by the Superintendency are very important because it
is very common for the supermarkets to abuse consumers and to deceive the
consumers because they do not put enough attention to promotions or prices.
6. Legislation Doctrine
Topic: Difference between advertising and simple information
Who: Superintendency of Industry and Commerce
When: February, 2005
What Happened: The law of Consumers Protection does not establish a difference between

advertising and information. Nevertheless, according to the Doctrine of the
Superintendency of Industry and Commerce and the jurisprudence of the
Constitutional Court, the Estate has to warranty the rights of the consumers
about the information transmitted, especially the commercial information.
The Superintendency states that information is an extensive concept,
compared to advertising which is a kind of information that shows, in the
media, a trademark, a good or a service of a merchant in order to inform
their existence, to persuade or to influence the consumer to impel sales, or to
live a memory in the consumers.
Advertising transmits two kinds of information: An objective information,
which is verifiable and is related to the characteristics of a good or service
and their description, and subjective advertising which is the way that the
producer persuades the consumers to buy his goods.
7. Legislation Doctrine 05002326
Topic: Coexistence of trademarks
Who: Superintendency of Industry and Commerce
When: February 22, 2005
What Happened: In the Andean Community it is possible for trademarks of different owners
to co-exist even if they are identical or similar. Nevertheless interested have
to file an agreement before the Trademark Office in each country of the
Andean Community, in order to protect the rights of the consumers. Coexistence
of trademarks has the following characteristics and requirements:
The existence in the Andean Community of trademarks similar or
identical.
The existence of an agreement between the owners.
Measures to avoid inducing the consumer into error.
To inform the consumers about the specific information about each
product.
To inscribe the agreement before the Trademark Office.
Fulfill the laws of fair competition and commercial customs.
Which is the most important is that merchants have to take all measures to
avoid the consumer being confused about the origin of the products and
their characteristics.

COSTA RICA
Uri Weinstok M.
Niehaus & Weinstok
uweinstok@niehauslaw.com
www.niehauslaw.com
1. Proposed
Regulation:
Proposed reform to the General Health Law
Topic: Health related messages
Who: Asamblea Legislativa
When: March 2005
What Happened: The Ministry of Health sent an initiative to the Congress (Asamblea
Legislativa), promoting a reform of the country’s General Health Law (Ley
General de Salud).
If this reform is approved, all messages that related to public health, or that
in the opinion of the authorities may affect public health (including news,
reports, and advertising) will have to be previously cleared for publication
by the Ministry.
Comments: It is very unlikely that an initiative of this kind will be approved. However,
the sole fact that it has been sent to Congress tells a lot about the negative
attitude of certain authorities towards free speech.
2. Case Report: SMIRNOFF VODKA – “Drink responsibly”
Topic: Alcoholic Beverages
Where: Instituto sobre Alcoholismo y Farmacodependencia (IAFA)
When: December 2004
What Happened: IAFA, the governmental office in charge of reviewing and clearing
advertisements of alcoholic beverages rejected an ad for SMIRNOFF
VODKA, because it contained the phrase “Drink responsibly”.
According to IAFA, this phrase is an explicit invitation to drink, disguised as
a warning. The decision stated that only governmental approved warnings
may be included, even if the requested phrase was written in addition to
such warning.
Comments: This case is a good example on how an overzealous regulator may actually
loose the point of the real purposes of the regulation. These types of
decisions, which reflect a clear distrust in the industry, are actually impeding
the advertiser from making more responsible marketing.
3. Case Report: Rexona Fresh Intense
Topic: Decency in advertising
Where: Oficina Nacional de Control de Propaganda (ONCP)
When: January 2005
What Happened: This ad of a deodorant used different persons in daily activities using body
paint. The paint was very similar to their normal clothes, and was used to
give the impression of persons with his/her clothes stuck to their bodies due
to excessive heat, as opposed to the fresh feeling of using the said deodorant.
ONCP suspended a TV commercial on the basis that it improperly exposed

ody parts. Even if all intimate parts were covered by body paint, officers
considered that human figure was sensibly exposed.
Comments: Criteria of ONCP (as in most government offices related to advertising) often
shifts according to the person in charge. Even if no major changes have been
in the regulations, the criteria of this office have been swinging according to
the opinion and criteria of the particular officers in charge at a particular
time.
4. Case Report: Taco Bell
Topic: Violence in advertising
Where: Oficina Nacional de Control de Propaganda (ONCP)
When: January 2005
What Happened: ONCP suspended a TV commercial that showed a woman slapping her
partner over a discussion. This office considered that this kind of scenes
promote violent behavior, and is not necessary for the commercial of this
product.
After the commercial was suspended, advertiser agreed with the office and
removed the scene from the commercial.
Comments: Particular sensibilities not taken into account when making a commercial
may affect an ad or even a whole campaign. In this particular case, the
removed scene was not important for the ad. However, had it been a key
element, all the production costs and efforts would have been wasted.
5. Case Report: IMPERIAL BEER PROMOTION
Topic: Alcoholic Beverages – Use of celebrities
Where: Instituto sobre Alcoholismo y Farmacodependencia (IAFA)
When: December 2004
What Happened: Costa Rican regulation on advertising of alcohol forbids the use of famous
people in such a way that may motivate people to emulate them and
therefore consume alcoholic beverages.
This ad is for a promotion made by a beer brand, in which it offered various
prizes, some of them in cash. Part of the ad shows some money as part of the
prizes. However, the ad was questioned by regulators, who considered that
the person pictured in the bill is famous, and therefore the ad was illegal for
including her picture.
The decision was appealed and revoked. However, by the time the case was
decided the promotion was over, and the ad could not be used.
Comments: This is a typical case of regulators going beyond the laws and regulations to
block a campaign that – although legal – is disliked by them. This ad was
clearly not infringing the regulation, but the system worked against the
advertiser and prevented the ad from being used.
6. Proposed
Regulation:
Reform to General Electoral Laws
Topic: Advertising of Political Parties
Where: Asamblea Legislativa
When: February 2005
What Happened: A bill of law was presented to allow political candidates free air time during
election periods. This time would be given up by all TV and Radio stations
and divided equally among all candidates.

Comments: Use of broadcasted media during election times has been a subject of
discussion for quite some time. It has been argued that only candidates with
enough resources to finance a TV and Radio campaign have reasonable
chances of being elected.
However, the solution found in this project does not seem at all to be
appropriate at all. First, the amount of air time that would have to be given
up by broadcasters would probably overwhelm the public.
In addition, even if some fairness in the allocation of time among political
parties, there is no reason why this should not be paid advertising. The cost
of this system to the broadcaster would be clearly unreasonable.

CROATIA
Mladen Vukmir
Vukmir & Associates
mladen.vukmir@vukmir.net
1. Case Report
Topic: The case of the Customer’s voice commercial
What Happened: One of the leading Croatian chain retailers is currently in the process of
launching a new advertising campaign. The concept of the campaign is
promotion of retailer’s services directly by consumers. Each customer who
would like to take part in the campaign should insert his/her consumer card
containing the personal data in special video boxes located in every store,
and state his/her comments on the quality of the services. If the video record
containing the consumer’s opinion is published in the media the customer
will be rewarded.
The described situation embraces a few legal aspects to be solved. It concerns
personal data protection, copyright aspect, certain aspect of performance
right, and possibly the aspect of compensation for damages.
The video record prepared in the above manner contains one’s personal data.
According to the Act on Protection of Personal Data, personal data represents
any data that may lead to the identification of the particular person. Even if
the consumer’s name is not indicated, the video record still may lead to its
identification, therefore, it is subject to the provisions of the Act.
Video records containing a person’s opinion may also, to certain extent, be
qualified as the copyright work or performance right. The performance right
aspect is particularly emphasized if the opinion is provided in an original
manner, or in the form of a song.
Publishing of one’s video record may be a reason for damage compensation
claims. The person appearing in the video record may claim the violation of
his/her reputation if the performance has been perceived by the public as
comical or ridiculous.
The recommendation on how to prevent possible claims for compensation
was the following. The participating customer should prior to joining the
campaign, give his/her consent for publishing the video and also should
waive any compensation claims. The acceptance should be given in a form of
the disclaimer visually presented on video boxes. In this manner the retailer
would be secured from damage compensation claims or claims for
unauthorized use of copyright work or performance right.
2. Case Report
Topic: The case of the national anthem
What Happened: A Croatian marketing agency produced an advertising campaign for a
brewery. The intention was to launch the campaign before the European
Football Championship and to associate beer and football. The general idea
was to show football supporters wearing sport outfits and drinking bear. The
planned musical background was the Croatian national anthem.

The Flag, Emblem and Anthem Act of the Republic of Croatia prescribes that
the national anthem may be used under the conditions that such use does not
violate dignity and reputation of the Republic of Croatia. Any breach of the
cited provision represents the misdemeanour act punishable with fine.
Further, the Criminal Law (Penal Code, Criminal Justice Act) prescribes
imprisonment from 3 months up to 3 years for persons exposing the flag,
emblem or anthem of the Republic of Croatia to public dishonour.
The key issue was whether the court would consider the campaign to be
artistic work due to its commercial nature. The additional concern was
focused on the fact that the association between the national anthem and an
alcoholic drink could be qualified as the use contrary to the ban prescribed in
the above quoted articles. The recommendation was therefore to slightly
modify the campaign in a following way. Instead of having the anthem as
musical background the supporters would actually watch the broadcast of
the game from TV. The sound of the anthem would likewise be broadcasted
on TV. It was estimated that in that manner the risk of exposure to legal
liability would be reduced.
3. Case Report
Topic: The case of a deceased singer
What Happened: One of the leaders in food industry in Croatia intended to launch a new
product followed by an extensive advertising campaign. The intention in the
campaign was to use a look-alike of one famous deceased singer and
performer who would appear in a promotional video playing a song and
eating the product. The song used in the video would not be the song
composed by the famous singer but composed for the sole purposes of the
campaign.
The opinion was that the campaign would be permitted under certain
conditions. It would be important to emphasize that a person appearing in
the video was not the famous singer but his look-alike. The famous singer’s
name should not be mentioned in the promotional video while the name of
the look-alike should be indicated. Under these conditions the misuse of the
deceased singer’s features could not be claimed as the difference would be
shown beyond any doubt. Also, the general attitude is that the deceased
persons have comparatively narrower scopes of protection from commercial
exploitation than the living persons.
4. Case Report
Topic: The case of a TV serial
What Happened: One of the advertising agencies created the marketing campaign for its client.
The campaign was based on the concept of one Croatian legendary TV serial.
The same actors from the TV serial would also play their parts in the
campaign imitating their own roles played in the TV serial. Their
conversation would include the sentences typical for their roles from the TV
serial and the surroundings would also be reminiscent of the TV serial.
However, the pictures for the campaign would not be taken directly from the
TV serial but would be created especially to be used in the campaign.
Prior to launching the campaign the author of the pictures, which were
intended to be used, would first have to give his/her consent to using the
photos in the campaign. Following the provisions of the Copyright Law, if

the sentences used in the campaign were not modified but directly cited from
the TV serial, the name of the authors of the TV serial would have to be
indicated. Otherwise, the authors would be entitled to claim the
compensation for infringement of their moral rights.
The advice was not to use the exact quotations from the TV serial but to
slightly modify the sentences. The names from the serial would also have to
be avoided and surroundings would have to be darkened. The described
approach would decrease the opportunity for infringement of the copyright
of the authors of the TV serial.

CZECH REPUBLIC
Filip Winter
Winter & spol.
filip.winter@akwinter.cz
www.akwinter.cz
1. Case Report
Topic: Premium SMS
Who: Ministry of Finance
When: Spring 2005
Where: Czech Republic
What Happened: For years, premium rates SMS were widely used as a part of promotional
activities. The legislative rules were not totally clear and in practice this
worked well. Nevertheless, the Ministry of Finance, supervising this area,
has declared, that such premium SMS promotions will be considered illegal
lotteries, especially if the winner is chosen by random. This corresponds with
the new draft of EU sales promotional directive, which excludes „gambling
activities which involve wagering a stake with monetary value, including
premium rates on postage or telecommunication, such as lotteries and
betting transactions“.
2. Case Report
Topic: Clear reference to the source of information in an ad is good enough
Who: Municipal Court in Prague
When: Spring 2005
Where: Czech Republic
Comment: One of the biggest banks in the Czech Republic advertised its consumer
credits with the only number in the ad: “2,99%” plus “look for more info at
web address and tel. green number. In fact, such credit rate is offered for
starting period only; therefore competitors asked the court to preliminarily
order the bank to change the ads. The court failed to make such decision,
saying, that the clear reference to the source of information (web, telephone)
in the ad is good enough. The decision is not final.

DENMARK
Johan Løje
Hans Flensted – Jensen
Sandel, Løje & Wallberg
jl@slw.dk
www.slw.dk
1. Title Sexist advertisement
Topic: Advertising by real estate agent considered to be sexist
When: December 2004
The Case: A Danish real estate agent issued advertisements for an office building in the
media – both in newspapers and on the Internet. The illustration below
shows the advertisement.
The text in connection to the picture says: “Personal ad: Beautiful and
seductive estate is seeking total exploitation…”
The Danish Women’s Council complained to the Consumer Ombudsman.
According to the Council the advertisement created a picture of women as
unintelligent beings that could be used for anything. Further, according to
the Council, it showed women as objects being sexually available for
everyone.
The Danish Consumer Ombudsman agreed with the Women’s Council and
found that the advertisement reduced females to sex objects. It was unethical
and inappropriate. This was especially so because many women must accept
violence and sexual abuse from their husband, as the Danish media had dealt
with extensively in the fall.
Therefore the Consumer Ombudsman requested that the estate agent stop
the marketing campaign. The estate agent did so by replacing the woman

with a white silhouette. But the Consumer Ombudsman did not find this
sufficient, and therefore the estate agent ended the campaign.
Comments: The argument from the Consumer Ombudsman is probably fair. But it is
interesting that he refers to what the media has been dealing with recently,
instead of just leaving the argument as is. Further, the replacement with the
white silhouette by the estate agent shows a good sense of humor. Albeit the
campaign was considered illegal, it was a great success according to the
estate agent. The advertisement resulted in a significant number of interested
leasers.
2. Title TV commercial for the Prime Minister?
Topic: Advertisement for a biography of the Prime Minister not considered illegal
When: December 2004
The Case: At the nationwide Danish TV-station TV2, an advertisement was shown of a
biography of the Danish Prime Minister. The commercial showed the book
with a picture of the Prime Minister, with the following voice over: “You
know the name, but do you know who he really is?” This was followed up
by “this year’s most praised biography by the reviewers!”
The Danish Radio and TV Authority Board received a complaint from the
youth organization of the opposition party. According to their opinion the
commercial was a mere advertisement for the Prime Minister, instead of the
biography of him. The youth organization found that the advertisement
appeared as propaganda for the Prime Minister rather than marketing
measures for the book about him. According to the plaintiff, this was a
violation of the Danish code on Radio and TV commercials prohibiting
advertising for political parties or elected members of political assemblies.
The Radio and TV Authority Board disagreed with the youth organization.
According to the Board the advertisement only focused on the private
individual of the Prime Minister, and not in particular on the political figure.
The advertisement was focusing on the man behind the power. The Board
also concluded that there was no evidence showing that the Prime Minister
contributed to the decision on how to construct the advertisement, and when
to show it. Therefore the Board did not find the advertisement illegal
propaganda for a political figure.
Comments: Most likely the complaint from the youth organization came, because of the
upcoming general election to the Danish parliament. It can of course give
food for thought that such a commercial is launched only weeks before the
same Prime Minister announced the election. But the advertisement clearly
focuses only on the private person and the biography as such, and not the
political figure.
3. Title Spam e-mails and text messages
Topic: Debitel fined approximately. 28000 - Euro for spamming
When: March 2005
The Case: In the spring 2003 The Danish telecoms company – Debitel – sent out 12000
text messages and 40,000 e-mails without prior consent from the receivers.
This happened due to a merger between the biggest telecoms company and
one of the smaller ones in Denmark. Debitel contacted customers of the small
company. The content of the text messages and e-mails was slightly
condescending and ridiculing.
The prosecutor argued that this was a violation of the prohibition of

unsolicited electronic mail in the Danish Marketing Practices Act.
Debitel argued that it first, did not consider text messages as electronic mail
and secondly, launched the campaign in order to “play some tricks”.
The Danish Maritime and Commercial Court had a clear opinion of what
electronic mail is. It found all kinds of messages sent via electronic devices,
as electronic mail. This included e-mails, video messages, SMS, MMS, etc.
Further, the Court did not consider the messages and e-mails just to be the
playing of some tricks. It concluded that Debitel had violated the prohibition
of unsolicited electronic mail, and fined Debitel apr. 28,000 Euro.
Comments: This is the first big case on spamming in Denmark resulting in a recordbreaking
fine. It is clear that the text messages also amount to electronic mail,
and it was only because Debitel did not give it any serious thoughts that they
did not figure that out. Debitel has appealed the decision to the Supreme
Court.
4. Title E-wire marketing through artists
Topic: Marketing measures in books and pop-songs prohibited
When: November 2004
The Case: The Danish IT-company E-wire publicly proclaimed that they had offered
authors and musicians financial support if they incorporate E-wire in their
next release. E-wire provides an electronic “wallet” that can be used for
purchases on the Internet. E-wire thought that it would be a different and
funny way to promote the company.
The Consumer Ombudsman had the opinion that such marketing measures
would be contrary to the Danish Marketing Practices Act’s provision on fair
trading practice. In addition, he considered E-wires marketing measures
contrary to the International Chamber of Commerce’s Code on Advertising
Practice Art. 12. This requires advertisements to be clearly distinguishable as
such, and according to the Ombudsman, E-wire’s marketing measures were
undercover advertising (or “product placement”), and also misleading and
improper advertising.
After the comments from the Consumer Ombudsman, E-wire withdrew the
offer to the artists.
Comments: It was not surprising that the Consumer Ombudsman did not like the idea
from E-wire, since the Danish practice on “product placement” is fairly strict.
Additionally one of the authors found it a bit difficult to incorporate E-wire
into his next novel, since it takes place in the Middle Ages (!).

DOMINICAN REPUBLIC
Jaime R. Angeles
Oficina Jaime Angeles
jaime@angeleslegal.com
www.angeleslegal.com
1. Topic: Injunction of use of a slogan in advertisements
Where: Dominican Republic
When: November 2, 2004
What Happened: British American Tobacco (Brands), Inc. successfully obtained an injunction
that prevents a national tobacco company (La Tabacalera) to use the slogan
EXPLORA LA ONDA and EXPLORA LA ONDA VERMONT (Explore the
Wave and Explore the Vermont Wave), in any product or marketing or
promotional material of any kind or means including communication to the
public.
The judge considered that injunctions are remedies necessary when in a
case,a plaintiff’s rights seem to be justified and they presume the urgency or
danger of the protected rights, also to avoid the disappearance of the
evidence, and to guarantee the rights of the applicant. The judge considers
that the remedies can be adopted in a fast and simple form before initiate the
action in justice.
Comments: A very important decision, taking into account that the Dominican Republic
has a new Criminal Procedure Code. It was the first remedy adopted by a
criminal court after the new Code was enacted (September 2004)
2. Topic: Criminal penalties for misuse of a slogan
Where: Dominican Republic
When: November 18, 2004
What Happened: A Dominican tobacco company (La Tabacalera) was found guilty of
trademark infringement for the use of the slogans EXPLORA LA ONDA and
EXPLORA LA ONDA VERMONT (Explore the Wave and Explore the Vermont
Wave). The company has to pay a fine of 50 minimum monthly wages
(US$7,885.00).
The judge considered that
a) The evidence presented in the trial showed that La Tabacalera used the
slogan EXPLORA LA ONDA in marketing and promotional material.
b) The illegal (fraudulent) use of the slogans by the defendants was
established from the knowledge they had about them, from the registration
of the slogan and from the exclusivity right of exploitation that the plaintiff
has of the registered sign.
c) The evidence presented also proved that there was no authorization to
use the slogan.
Comments: This was the first trademark decision since the application of the new
criminal procedure code in DR.

FINLAND
Bernt Juthström, Mikael Segercrantz & Jenni Jämsén
Roschier Holmberg
bernt.juthstrom@roschier.com
mikael.segercrantz@roscheir.com
jenni.jamsen@roscheir.com
www.roschier.com
1. Topic: Rules for co-operation regarding marketing between companies and
educational institutions
Who: The Consumer Agency
When: September 2004
What Happened: The National Board of Education and the Consumer Agency have drafted a
memo for schools concerning the principles of cooperation with businesses
marketing in schools and corporate sponsorship. The memo is directed to
administrators and teachers who work with minors and it is based on the
consumer ombudsman’s guidelines on marketing directed to children.
In spite of the cooperation, schools should maintain a critical view toward
marketing and consider the objectives of the businesses. Schools and other
educational institutions are tempting marketing channels for businesses and
the tendency to use these channels has increased. Children and young people
are a significant consumer group who make their own buying decisions and
may also influence the buying decisions of their parents. Schools should not
serve as marketing channels for businesses, because their priority is to
educate children and distribute impartial information.
Minors have a special status in consumer protection because they are more
influenced by the effects of marketing than adults due to their more limited
knowledge and experience. Businesses are responsible for their marketing
and ensuring that their marketing complies with the Consumer Protection
Act (38/1978). The special requirements for marketing directed at children
must be taken into account. Teachers must also pay attention to the special
status of the children regarding marketing. Teachers should guide pupils to
evaluate different types of material critically and as broadly as possible.
Teachers should explain to the students what is considered commercial
material, who produces the material, how marketing is visible in the material
and what the objectives of the marketing communications are.
The cooperation with pupils’ parents is important. Parents have the right to
decide what kind of marketing their children are exposed to. Distributing
marketing material, such as advertisements, product samples or promotional
gifts at schools is therefore prohibited without parents’ consent. If minors
participate in a promotional contest, they require permission from their
parents. The memo encourages schools to cooperate with parents and to
inform the parents of the objectives and cooperation between the school and
businesses.
2. Topic: Guarantee terms of Nokia’s mobile phones are not unfair
Who: The Supreme Court
When: December 2004

What Happened: Nokia had guaranteed that, in accordance with the particular preconditions
mentioned in the guarantee terms, there are no material or structural defects
or other defects due to the quality of work when the product is sold for the
first time to the end buyer. Nokia had also guaranteed to repair a defective
product or to replace it with another product during the guarantee period.
However, according to the guarantee terms Nokia was not liable for indirect
damages or costs.
The Consumer Ombudsman claimed that Nokia shall be prohibited from
using the guarantee term that excludes compensation for indirect damages
arising in connection with defects, because such condition is unfair. In
addition to the alleged unfairness based on Chapter 3 Section 1 of the
Consumer Protection Act (38/1978), the Supreme Court’s ruling concerned
the question of whether the limited guarantee given by Nokia Oyj should be
considered to be an express representation of the seller under Chapter 5
Section 20 of the Consumer Protection Act. In such case, Nokia would also
have been liable for compensating the indirect loss suffered by the buyer due
to defects in the product.
The Supreme Court found that Nokia had not given an express
representation regarding certain features of the product, when they had only
agreed that the product fulfils the criteria already imposed by the law. The
Supreme Court stated that the provision in Chapter 5, Section 20 of the
Consumer Protection Act limits the liability for express representations to
cases where the product at the time of concluding the contract differs from
that which was agreed. Therefore, said provision limits the liability to cases
where the product did not have, at the time of concluding the contract, such
specific features, to which the seller had agreed to. In this case the seller had
agreed to repair the defects of the product based on a functionality guarantee
regardless of whether the primary reason of the defect already existed at the
time of concluding the contract or whether it had arisen later during the
guarantee period. Consequently, the liability for indirect damages based on
an express representation set forth in Chapter 5, Section 20 of the Consumer
Protection Act differs by nature from the functionality guarantee, which was
the case here. Therefore, Nokia’s guarantee was not an express
representation of the seller as set forth in Chapter 5 Section 20 of the
Consumer Protection Act and the guarantee term excluding compensation
for indirect damages was not deemed unfair for this reason.
However, the Supreme Court stated that unclear terms could also be unfair
from the point of view of consumers and Nokia’s guarantee terms could
perhaps be deemed unclear, but the Consumer Ombudsman had not
invoked this argument. Nokia had not limited the legal rights of a consumer
to compensation for indirect damages in case the defect or loss is due to
negligence on behalf of Nokia. Therefore the Supreme Court found that
Nokia’s guarantee terms should not be deemed unfair based on the grounds
presented by the Consumer Ombudsman, when making a general
assessment of the terms.
3. Topic: Amendments to the information to be given in respect to consumer products
and services
Who: Council of State
When: January 2005
What Happened: The new Decree on information to be given in respect to consumer products
and services (613/2004) came into force in the beginning of 2005. Provisions

on information to be given in respect to consumer products have existed
before, but there has not been a specific regulation on information to be given
in respect to consumer services.
In respect to consumer services the Decree particularly includes provisions
on the information which the service provider shall give in advance to
consumers as well as information that must be given during the performance
of the service. These provisions will be applicable e.g. to several commercial
services relating to traveling and free time, like exercise and sport services as
well as different kinds of event organizing.
According to the Decree, the information shall be given in a clear and
understandable format. The supervising authorities can also impose
requirements regarding giving of information, if the information has not
been given in such a way as deemed necessary for avoiding and preventing
risks relating to the product or service.
Products, with product information complying with the provisions
applicable before the entry into force of this new Decree, may be put on the
market until the end of June 2005, even though the product information
concerned would not comply with the provisions of the new Decree.
Similarly, consumer products that are put on the market before 1 July 2005
may also be sold. The information to be given in respect of consumer services
shall comply with the provisions of this Decree at the latest on 1 January
2006.
4. Topic: New cosmetic legislation
Who: Parliament of Finland
When: February 2005
What Happened: The new Act on Cosmetic Products (22/2005), implementing the latest
amendments in EC legislation on cosmetic products, came into force in the
beginning of February 2005. According to the general safety requirement
provided in the Act it is permissible only to put such products on the market
which are safe for people’s health. The entrepreneur is responsible for
ensuring that the cosmetic products are safe and fulfil the requirements of
the regulations. The Act includes provisions regarding basic requirements of
the content of cosmetic products. More specific provisions regarding
forbidden substances, substances permissible with limitations as well as
permissible preservatives, colorants and sun protection substances are set
forth in the Decree of the Ministry of Trade and Industry (75/2005).
The Act includes also provisions on using animals in the testing of cosmetic
products, introducing products tested on animals into the market and on
presenting statements regarding animal experiments. It has already been
prohibited to test finished products on animals since 11 September 2004.
According to the Act, testing of ingredients of cosmetic products with
animals will also be prohibited gradually as the alternative processes are
taken into use.
The requirements regarding labeling of cosmetic products mainly
correspond with earlier requirements. A new requirement is that the length
of time the cosmetic products will be preserved after opening the packaging
shall be noted on the products if it will be preserved over 30 months.
According to the new provisions, 26 perfume components shall also be
mentioned in the list of ingredients with their own names.

5. Topic: Permission to market by text message can not be requested with a text
message
Who: The Supreme Court
When: March 2005
What Happened: In February 2002 Aller Julkaisut Oy had sent text messages to consumers, in
which they inquired if they could send a special offer of a magazine via text
message to the recipients. The special offer was not sent if the recipient did
not react to the message or rejected the special offer. According to the Act on
the Protection of Privacy and Data Security in Telecommunications
(565/1999), telecommunications may not be used for direct marketing
without the prior consent of the subscriber if the calls are made by means of
automated calling systems or facsimile machines. The main issue in this case
was, should the text message sent by Aller Julkaisut Oy be deemed to be
direct marketing or was the message just an inquiry for prior consent for
direct marketing, which is not prohibited. The defendant claimed that the
only purpose of the text message was to ask prior consent from consumers.
They emphasized that the text message, which was sent to the consumers,
did not include any information of the price or subscription period. They also
pointed out, that the message did not contain any glowing phrases praising
the product, which is typical in marketing material.
The Supreme Court stated that the concept of marketing should be treated
broadly. Simply mentioning the name of the product or displaying the
picture of the product may be viewed as marketing, if the purpose is to
promote the sale of the product. According to the Supreme Court, marketing
can also be carried out in several phases. The Supreme Court found that the
purpose of the sent message was clearly to promote the sale of the magazine
and that the consumer would accept the special offer and later subscribe to
the magazine. Although the consumer would not necessarily even reply to
the message, the mention of the magazine’s name enhances the publicity of
the magazine and relates to advertising. Due to the aforementioned, the
Supreme Court found that sending text messages to inquire if the consumer
would like to have more information about a product is considered direct
marketing. The use of this kind of direct marketing requires prior consent of
the consumer. The Supreme Court found that the conduct of Aller Julkaisut
Oy was contrary to the Act on the Protection of Privacy and Data Security in
Telecommunications as well as inappropriate under the Consumer
Protection Act (38/1978).
Comments: The Act on the Protection of Privacy and Data Security in
Telecommunications (565/1999) has been repealed by the Act on the
Protection of Privacy in Electronic Communications (516/2004). According to
the new Act, if a company obtains from any customer who is a natural
person, the customer’s mobile phone number in the context of the sale of a
magazine, it may use this contact information for direct marketing of any
other magazine published by the company by sending text messages to the
customer, provided that the customer has not prohibited such marketing.
6. Topic: Competence of the Market Court to prohibit the sale of products under the
Unfair Business Practices Act
Who: The Market Court (and the Supreme Court)
When: March 2005
What Happened: LEGO Companies initiated proceedings before the Market Court against
Biltema Suomi Oy claiming that Biltema was violating good business

practices by marketing COKO building blocks that created risk of confusion
with LEGO building blocks. The blocks were on display for sale in Biltema’s
outlets and they were also marketed through a mail order catalogue and
Biltema’s web pages. The Market Court found that there was confusing
similarity between the imitations and the original LEGO blocks and
prohibited Biltema from continuing the marketing of the COKO blocks in its
mail order catalogue. The Market Court took the view that it is, under the
Unfair Business Practices Act (1061/1978), not authorized to issue a sales
ban.
LEGO was granted leave to appeal and appealed to the Supreme Court,
which found that the concept of marketing shall be interpreted broadly and
that the Market Court should not have assessed the sale and the so-called
active sales promotion of the product differently. Contrary to the Market
Court’s decision, the Supreme Court found that selling must be considered
marketing and, accordingly, can be prohibited under the Unfair Business
Practices Act. The Market Court should, thus, not have dismissed LEGO’s
claims on the grounds stated in its decision. The Supreme Court returned the
matter to the Market Court for reconsideration of LEGO’s claims which had
not been accepted.
When the matter was reconsidered, the Market Court interpreted the
definition of marketing under the Unfair Business Practices Act broadly. The
Market Court found that (in addition to marketing in Biltema’s mail order
catalogue) also the marketing of COKO building blocks on Biltema’s website
and in Biltema’s outlets may have caused risk of confusion as to the
commercial origin of the product. Biltema was therefore acting contrary to
good business practices. In addition Biltema’s actions were found unfair in
respect of exploitation of the goodwill related to the LEGO products.
The Market Court found that emphasized requirements should be set to
prevent the risk of confusion, when it was taken into account that Biltema’s
imitation had been systematic and that the LEGO building blocks were very
well known among the consumers. The Market Court held that the risk of
confusion could be prevented only if the appearance of the COKO building
blocks themselves was clearly changed in order to distinguish them from
LEGO building blocks. Therefore, the Market Court prohibited Biltema from
marketing the COKO building blocks in such a manner that a COKO
building block or a series thereof were showed or otherwise illustrated,
unless the outer appearance of the blocks is clearly differentiated from the
original LEGO building blocks.
Comments: The definition of marketing under the Unfair Business Practices
Act should be interpreted broadly, including both active sales promotion as
well as the very offering for sale of the products. The Supreme Court ruling
defined the scope of the Market Court’s jurisdiction and made available more
effective tools for the Market Court for purposes of preventing unfair
business practices.

FRANCE
Michel Béjot & Barbara Doittau
Bernard Hertz Béjot
bejot2@aol.com
bdoittau@bhbfrance.com
www.bhbfrance.com
1. Legislation
Topic: A step forward, a step backward: amendment of the Loi Evin on the
advertising for alcoholic beverages in France
Who: French Parliament
When: January 20, 2005
Where: France
What Happened: After much debate and lobbying, the Loi Evin regulating advertising for
alcoholic beverages has been amended as regards the claims allowed in such
ads.
The amendment applies to all alcoholic beverages that benefit from a
protected geographic indication, regardless of their country of origin.
Until this amendment was passed, the only characteristics that could appear
in an ad for alcoholic beverages were the following ones: indication of the
amount of alcohol, origin, ingredients of the product, name and address of
the manufacturer, agents and depositaries, mode of production, sales
conditions and instructions of use of the product.
Ads may now include references to the soil of production, the rewards
obtained, the geographic indications as defined in international agreements.
Campaigns may also refer to objective references relating to the color,
olfactory and gustatory characteristics of the product.
Comments: The requirement that the additional indications be “objective” was added at
the last minute under the pressure of lobbyists fighting alcoholism. This
requirement of objectivity is in line with the spirit of the law but it also seems
somehow inconsistent with claims relating to the color, taste and smell of a
product that are rather objective.
Even though the new law could be interpreted as allowing greater
possibilities of expression, the BVP recommends that the spirit of the law be
followed and that the BVP’s recommendation on advertising for alcoholic
beverages be complied with.

2. Case Report
Topic: The representation of sugar in advertising: advertisers should fight against
obesity but they should not not disparage sugar! (two cases).
Who: SAS Orangina Schweppes holding v. Le Cédus
Toothpaste company v. sugar industry
When: Cour d’appel de Versailles June 2, 2004
Tribunal de Grande Instance de Nanterre March 11, 2005
Where: France
What Happened: In the first instance, a TV ad promoting the Orangina sugar free soft drink
showed three types of characters (sugar cubes, bubbles and orange pulp)
standing in front of a night club where a bouncer prevented sugar cubes
from entering the venue.
The court considered that the ad was disparaging against sugar, insofar as
the sugar character was presented in a ridiculous manner, humbly begging
to be let into the night club. The sugar cube was whining, begging and badly
shaved, and, according to the court, the humorous nature of the ad did not
make a difference to the disparagement.
The court therefore ordered that the broadcasting of the ad cease.
In the second instance, a TV ad for toothpaste showed a young couple going
across a “rain of sugar” then entering a restaurant where all the dishes were
made of sugar. The message aimed at showing that many food products
include sugar and that an optimal protection was necessary.
The BVP, when asked for its opinion prior to the broadcasting of the ad,
considered that the argument was moderate by simply reminding the fact
that sugar is likely to cause the development of tooth decay. The BVP
requested that a provision in large print be added to the ad, saying that sugar
was necessary to a well-balanced diet.
The tribunal considered that the broadcasting of the ad did not have to be
prohibited. The tribunal also considered as an important element the fact that
the BVP had given its go-ahead prior to the broadcasting of the ad.
Comments: In these times when ads are under close scrutiny by those trying to fight
obesity, the sugar industry is watchful and does not accept that sugar be
presented as the devil.

3. Case Report
Topic: Advertising and religion do not mix well…
Who: Marithé et François Girbaud
When: Tribunal de Grande Instance de Paris, March 10, 2005
Cour d’Appel de Paris, April 8, 2005
Where: France
What Happened: The trendy blue jeans brand Marithé et François Girbaud had a poster and
magazine campaign created to promote its products. The ad was a picture
based on Leonardo da Vinci’s Last Supper, showing twelve women and a
partially naked man (see ad below).
The Court of Appeal confirmed the first instance decision, whereby the
judges considered that the ad was likely to disturb the Catholics who saw it.
The court also considered that an ad, having a commercial purpose, should
not participate in debates such as religion.
The posters were thus withdrawn but the magazine publications were not
restricted.
Comments: The first instance decision, which has just been confirmed in appeal, is a very
lengthy decision where the judges provide very detailed reasons why the ad
could shock those who saw it and why it should no longer be posted.

4. Self-regulation
Topic: Can cigarettes be a part of history or does their image always constitute
prohibited indirect advertising?
Who: Bibliothèque Nationale de France
When: April 2005
Where: France
What Happened: A poster was created to promote an exhibition at the Bibliothèque Nationale de
France, relating to the French early 20 th century philosopher Jean-Paul Sartre.
The poster uses a famous picture of the philosopher, where the cigarette he
held between his fingers has been erased in order to avoid breaching the
provisions of the Loi Evin (see ad below).
It has been considered that this poster disguises the historical truth.
The BVP took this opportunity to remind the parties of the applicable
principles :
- the status of a picture, even though it is historical or artistic, changes as
soon as it is used for advertising purposes : it becomes advertising material ;
- the application of the Loi Evin is very strict and indirect advertising occurs
very easily ;
- for purposes of legal security, the BVP often advises that images showing
famous people be modified in order not to show their cigarette, cigar or pipe.
Comments: Advertisers seek above all to avoid problems and therefore take all necessary
steps to this purpose. However, one could wonder if such practices are not
excessive or absurd and if the spirit of the law requires such drastic
measures.

5. Self-regulation
Topic: What about the image of streakers in advertising?
Who: Eurostar
When: April 2005
Where: France
What Happened: The last Eurostar campaign is in the “So British” line of ads and shows a man
and a woman completely naked, running across a football field and being
chased by a bobby, in reference to streakers in England. The ad has been
posted in towns and in the tube.
The reactions of passers-by show that the ad is a success insofar as it
certainly caught their attention. However, the amount of mail received by the
BVP shows that it is also the type of ad that certain persons do not wish to
see in the streets.
In addition, it is interesting to note that the BVP had been asked for its
opinion prior to the posting of the ad (this was not mandatory since it was
not a TV ad). The BVP had issued a clearly negative opinion, based on the
indecent nature of the ad and based on the fact that the ad was in violation of
the BVP’s recommendation on the image of the human person. Finally, the
BVP considered that the ad should not be posted because it represented an
illegal behaviour, which should always be avoided in advertising.
This opinion was followed by the distributor who requested it but not by the
others, which explains why the ad was posted in France regardless of the
BVP’s negative opinion.
Comments: The BVP expressed its regret as to the absence of harmonization of the
parties’ behaviors in the context of self-regulation.

HUNGARY
Matias Vallejos Meana
Salló Ügyvédi Iroda
sallowlaw@mail.datanet.hu
www.decapoa.com
1. Title Data Protection
Topic: Proposal (T/14709) for amending Data Protection Act (Act LXIII of 1992)
Who: Ministry of Justice
When: February 2005
Where: Budapest
What Happened: The Ministry of Justice submitted to the Hungarian Parliament a proposal for
amending certain dispositions of the Data Protection Act. Within the
amendments, the proposal contains more flexible dispositions regarding the
transfer of data abroad.
According to the dispositions at present in force, the transmission of data to
Member States of the EU are treated as transmission within the territory of
Hungary.
According to the proposal, the transmission of data to Member States of the
European Economic Area (EEA) will be treated as transmission within the
territory of Hungary.
This means that also the transmissions to members of the EEA not members
of the EU (Norway, Iceland, Liechtenstein) will be treated as internal
transmissions.
The proposal also extends the cases when it is considered that a third country
(not member of the EEA) ensures an adequate level of protection.
At present Hungarian law requires that the third country ensures the level of
protection determined by the EU.
According to the proposal, it will be considered that a third country ensures
an adequate level of protection if:
a) the European Commission decided that the third country ensures an
adequate level of protection, or
b) the third country and Hungary concluded an international agreement
which grants the data subject the possibility to ensure his/her rights, or
c) the data controller or data processor of the third country certifies that it
ensures an adequate level of protection and protects the rights of the data
subjects, especially if done according to the dispositions adopted by the
European Commission.
2. Title Domain Registration
Topic: Domain Registration Rules and Procedures
Who: Scientific Association of Hungarian Internet Service Providers Council
When: 1 st March 2005
Where: Budapest
What Happened: Exercising the possibilities for self-regulation provided by section 15/A of

Act CVIII of 2001, the Scientific Association of Hungarian Internet Service
Providers Council has modified the Domain Registration Rules and
Procedures.
With the amendments, in force as of 1 st March 2005, any citizens of the EU
any entity established in the EU and any natural person holding a residence
permit in Hungary may request a top level .hu domain.
Natural persons and companies of countries not members of the EU may
only request a top level .hu domain if they are beneficiaries of a trademark
registered in Hungary or granted protection rights in Hungary.
Delegation of domains directly under a second level domains (e.g. info.hu)
may be applied by any Hungarian or foreign natural person or entity.
Another important amendment is the Alternative Dispute Resolution Forum
(Alternatív Vitarendező Fórum) for the settlement of legal disputes after the
delegation of a domain. Any party having a rightful interest may initiate a
complaint regarding the delegation or revocation of a particular domain
name from the registrant through an application submitted to the Alternative
Dispute Resolution Forum (ADRF).
In judging the application the ADRF shall proceed in accordance with the
provisions set out in Article 21 of the European Commission’s regulation no.
874/2004.
3. Title Henkel
Topic: Using Superlatives
Who: Competition Council
When: 1 st March 2005
Where: Budapest
What Happened: During the years 2000-2004 Henkel Magyraország Kft commercialized its
product Loctite Super Attak with the marking “No. 1 liquid” indicated in the
packaging of the product, in information materials of the product and on its
web page.
The Competition Council considered that the “No. 1 liquid” marking causes
the impression that it is the best product for the specific use.
Henkel argued that its intention was to refer to the fact that Loctite is the
leading product in the market (it has a 37% market share, against 5-10% of
the closest competitors) and to the Formula 1 racing team sponsored by
Henkel. Such position was accepted by the Advertising Self Regulation body
when it studied the issue in September 2004.
Since Henkel Magyarország was not able to prove that Loctite is the best
product in the market (from an objective, technical point of view), the
Competition Council decided that the “No 1” marking was misleading to
consumers, imposing a fine of 2.000.000 HUF (about 10.500 USD).

4. Title Easyjet
Topic: Comparative advertising
Who: Self-regulation Advertising Body (Önszabályozó Reklámtestület)
When: December 2004
Where: Budapest
What Happened: Easyjet airlines published an ad calling the attention to the fact that WizzAir
has cancelled more than 200 flights, according to the information provided in
the web page of WizzAir.
Easyjet also stated that since it started operations in Hungary, it has not
cancelled a single flight, suggesting to the travellers whose WizzAir flight
was cancelled to visit the web page of Easyjet (easyjet.com/wizzcancel),
where they can type the date of the cancelled flight and leave their remarks.
WizzAir reacted to the ad filing an action before the Ad-hoc Commission of
the Self-Regulation Advertising Body (Önszabályozó Reklámtestület Ad-hoc
Bizottsága). According to WizzAir, the ad is illegal, unfair, and untrue,
against the basic principles of market competition and jeopardizes the creditworthiness
of WizzAir.
The Ad-hoc Commission issued a decision on 20 th December 2004, declaring
that the ad complies with advertising ethic rules and does not breach
advertising or competition regulations.

IRELAND
Duncan Grehan & Conor Griffin
Duncan Grehan & Partners Solicitors
dgrehan@duncangrehan.com
cgriffin@duncangrehan.com
www.duncangrehan.com
1. Topic: The Investment Funds, Companies and Miscellaneous Provisions Bill, 2005
Stricter punishment for breach of misleading advertising or pricing
regulations
Who: Department of Enterprise Trade & Employment
When: April 2005
Where: Ireland
What Happened: Proposed legislation is currently being processed by the Government which
would increase the maximum fines that can be imposed on conviction for
breach of a variety of consumer protection laws. Retailers who are found to
be in breach of misleading advertising under the Consumer Information Act,
1978 could soon face fines of up to €3,000, an increase from the current fines
of €635. These fines also apply to retailers found guilty of below cost selling
of goods and to retailers who are found to be in breach of the Sale of Goods
and Supply of Services Act, 1980 which states that anything purchased from
a retailer must be of merchantable quality and fit for the purpose described.
Prosecutions can also be taken against retailers on indictment in the Circuit
Court and it is proposed to increase the maximum fine in the Circuit Court
from €12,697.00 to €60,000.
Comments: The proposed legislation has been welcomed by the various consumer
groups and by the Office of the Director of Consumer Affairs. The fines had
not been changed since the laws were enacted dating back as far as 1978 and
realistically the punishments no longer acted as a deterrent to retailers who
could easily eclipse the fine payable in a short time acting in breach of the
laws.
2. Topic: Complaint re Playstation 2 Game Advertisement
Who: Advertising Standards Authority of Ireland;
Broadcasting Complaints Commission
When: January 2005
Where: Ireland
What Happened: Advertising in a variety of media for a Playstation 2 Game called “The
Getaway, Black Monday” was the subject of complaints A poster
advertisement showed a threatening looking man holding a baseball bat with
the headline “London’s great if you like a bit of clubbin. Fun anyone?” The
television advertisement showed a man being chased along a rooftop and
then a man hiding in a toilet cubicle while the door of the cubicle is being
forced open. As the door is forced open the commercial moved from real
actors to a computer generated character in the game shooting an unseen
person. Complaints included that the pun on the word “clubbin” implied
violence and projected it as something fun to do. The television
advertisement was described as “nasty”. The advertisers pointed out that
the game was targeted at over 18’s only and parental advisory warnings
were carried on all materials. The game was set in a criminal environment in
London and the advertisements reflected this.

A complaint was also received by the Broadcasting Complaints Commission.
Here a radio advertisement (broadcast at 3:30pm) for the game featured two
actors speaking in cockney accents about the contents of a car boot – clothes,
hair, blood and a baseball bat. The advertisement was then followed by a
real life news bulletin detailing news of a violent death of a young girl earlier
that day.
Comments: The complaint to the ASAI was upheld. The Authority reiterated their
mission statement that an advertisement should contain nothing that is likely
to cause grave or widespread offence, and this commercial had clearly
contravened the Code. In particular, the Committee was concerned that
since children lack adult knowledge or experience, advertisements which
might indirectly target them or likely to be seen or heard by them should
have regard to how they would perceive the advertisement. Eventually the
Committee agreed to allow the advertisement to continue broadcasting after
9p.m.
The BCC also upheld the complaint and stated that the description of the
aftermath of a violent event is not appropriate content for an advertisement
particularly at 7:30pm in the evening.
3. Topic: Misleading prize promotions
Who: Advertising Standards Authority of Ireland;
Broadcasting Complaints Commission
When: October/November 2004
Where: Ireland
What Happened: A promotion run by the national broadcaster RTE was the subject of
complaints to both the ASAI and the BCC. The promotion was run on the
radio stating that “you could be in with a chance to win €1 million”. Listeners
were asked to text in to enter each day and each day a prize of €1,000 was
awarded to one listener. At the end of the promotion 3 of the winners of the
€1,000 daily prize were brought forward to play for €1 million. If one of the 3
participants had numbers to match those in a sealed envelope then they won
€1 million. Instead the names of three participants were placed into a hat and
one of the participants won €10,000. Complaints included that the
promotion was misleading in that it was highly improbable anyone would
win €1 million.
RTE responded by saying that they never actually stated that anyone would
win €1 million. The only commitment was that one listener would win €1,000
each day. They then stated quite clearly that a listener could be in with a
chance to win €1 million. They had received legal advice on the promotion
and had worded it very carefully to avoid such complaints.
Comments: The complaints were partly upheld by the ASAI and upheld in full by the
BCC. The BCC held that the promotion advertisements continually
emphasised the €1 million prize money and did not sufficiently state how
remote the chances of actually winning were. This could easily influence
listeners to enter the competition. .
4. Legislation: European Communities (Protection of Consumers in Respect of Contracts
Made by Means of Distance Communication) (Amendment) Regulations
2005
Who: Minister for Enterprise Trade & Employment; Minister for Finance
When: February 2005

Where: Ireland
What Happened: The 2001 Distance Selling Regulations specifically excluded financial
services. The Irish Government has now transposed into Irish law EU
Directive 2002/65/EC concerning the distance marketing of consumer
financial services. The objective of the Directive is to harmonise the rules
applicable to the distance marketing of financial services (irrespective of the
means used) with particular reference to prior information, rights of
withdrawal and the provision of unsolicited financial services. The
Regulations apply to any financial product or service of a banking, credit,
insurance, personal pension, investment or payment nature where the
contract is entered into at a distance and where the person is acting outside
their trade or profession.
Comments: The Distance Selling Regulations 2001 provided comprehensive protection
for any consumer purchasing through mail order or email. This protection
has now been extended to the sales of financial products. This is particularly
important with the huge increase in internet and telephone sales and internet
banking which allows consumers to order or apply for financial products
online.
5. Topic: Virgin Megastore - In Store Sales Promotion
Who: Advertising Standards Authority of Ireland
When: January 2005
Where: Ireland
What Happened: A complaint was received by the ASAI in relation to a promotion by Virgin
Megastores selling a Gameboy Advance SP plus Shark Tale game for €99.
The advertisements stated that the promotion was for one week only and
ended on 5 th December. Advertisements were by way of in store posters and
announcements over the in store Virgin radio station. The complainant
enquired about them on the day he saw the advertisement 3 rd December but
was told they were out of stock. When he suggested that the posters should
then be taken down he was told that it was management’s decision to leave
them up. The following day the complainant telephoned another Virgin
Megastore and was told they had eight in stock. He asked that one be put
aside for him however on calling to the store he was informed they had
actually made a mistake and had sold out a few days ago. Again there were
posters on display and the in store radio station was advertising the
promotion.
The advertisers responded that it appeared the customer had been given
incorrect information that the product was out of stock. He had also been
incorrectly advised that management would leave up posters when a
product was out of stock.
Comments: The complaint was upheld. The ASAI held that the advertisements should
have been withdrawn when it became clear the product was out of stock. The
advertisers had not been able to demonstrate that they had sufficient
supplies of the product in stock to deal with demand and advertisers should
always be able to substantiate that there is a reasonable supply of products
available if that product is the subject of heavy advertising or a promotion.
6. Topic: Sponsorship of News & Weather programmes
Who: Broadcasting Complaints Commission
When: January 2005
Where: Ireland
What Happened: Telephone operators in Ireland are regulated by the Communications

Regulator (ComReg). Under the regulations all advertisements for directory
enquiry numbers must clearly display the tariff payable or state where the
tariffs can be found. The Broadcasting Commission of Ireland Code on
Advertising and Sponsorship states that “sponsorship involvement in any
programme must not constitute advertising as defined in the Codes of Practice and
Prohibitions in Advertising and other forms of Commercial Promotions in
Broadcasting Service”
One of Ireland’s leading telephone operators, Eircom, had been sponsoring
the weather forecast programme on RTE, TV3 and TG4, Ireland’s main
terrestrial television channels. The complaint to the BCC was that the
sponsorship amounted to advertising and promotion in that the phrase used
was “if you need a number in a hurry, call 11811”. The key question for the BCC
to consider was whether the 11811 slot amounted to sponsorship or
advertising.
Comments: The complaint was upheld. The BCC held that the BCI Code on Advertising
and Sponsorship states that “sponsorship credits must not encourage the purchase
or rental of the products or services of the sponsor or a third party, in particular
making special promotional references to those products or services other than in
advertisements in commercial breaks”. Sponsorship should not directly
encourage viewers to purchase a particular product or service and in this
case the Eircom Directory Enquiry (11811) service was clearly referred to.
Once it is defined as an advertisement the Eircom ad was also obliged to
clearly display the tariffs for calling the number in default of which it would
be in breach of the ComReg regulations and misleading advertising laws. In
a later decision the BCC also specified that it was not sufficient to merely
provide a website address where call charges could be viewed. Since only
35% of Irish households have internet access this would not allow a sufficient
percentage of the public to access the applicable rates.
7. Topic: ASAI Annual Report
Who: Advertising Standards Authority of Ireland
When: April 2005
Where: Ireland
What Happened: The ASAI has released its Annual Report for 2004 detailing the statistics for
complaints received on advertisements during the year. It received 1146
complaints during 2004 in relation to 850 different advertisements. Analysis
of the complaints by sector shows that the most complaints were received in
relation to computers/telecommunications (200 complaints), travel/holidays
(154 complaints) and food & beverages (100 complaints). Since 2003 the
alcohol industry in Ireland has introduced a central clearance service for all
alcohol advertisements in advance of the advertisement being broadcast or
published and this has led to the number of breaches of the ASAI Code being
reduced from 12 in 2002 to 4 in 2004.
The main grounds for complaint were either that advertisements were
misleading or that they caused offence. Of the 1146 complaints received only
241 were passed to the ASAI Complaints Committee for decision.

ISRAEL
David Wolberg
Kuperschmit & Goldstein & Co.
dwolberg@netvision.net.il
1. Case Report
Topic: Advertisements for Prostitution Services in the Press
Where: Tel Aviv Magistrates Court
Who: The State of Israel vs. Shoken, Ma’ariv, Yediot Aharonot et al
When: Ruling delivered in September 2004
What Happened: The State of Israel (“Prosecution”) brought criminal charges against the
defendants, who published ads in newspapers which offered services such
as: “escort services”, “hospitality services”, “unforgettable paradise”,
“beautiful women who know who to pamper,” etc. Yet the term prostitution
was never used in these ads.
The Prosecution based its criminal charges on Section 205 of the Penal Code,
which prohibits advertising of prostitution services. The defendants raised
many technical arguments. One of their main arguments was that services
such as “escort services” and “massage services” do not constitute
“prostitution” services. If the legislature wanted to outlaw such services, it
would do so in clear language.
The judge held that the law is clear. The object of the law is to protect
individuals of the public who purchase newspapers and are not interested in
being exposed to such ads. Furthermore, the law is designed to prevent the
exposure of such ads to minors.
Though the offered services do not use the term “prostitution”, it is clear that
they are offering the use of a human body for pleasure, in exchange for
payment. Thus, the judge held the defendants guilty.
2. Proposed Law /
Bill
Topic: Consumer Protection (Food Advertisements Targeted At Minors), 2005
Who Proposed: Knesset (Parliament) members
When March 2005
Contents: The bill is designed against obesity among minors. The bill, if eventually
enacted, would limit ads relating to unhealthy food.
The law would oblige advertisers to reveal the dangers associated with the
consumption of advertised foods and the nutritional components of the
advertised foods. Additionally, the laws would limit the broadcasting hours
of such ads. The law will further prevent the use of celebrities and cartoon
figures in such ads.
A council, consisting of individuals such as health specialists, governmental
representatives and consumer representatives, will determine which foods
will be labeled as “unhealthy food” and will be subject to the law.

3. Legislation
Topic: Consumer Protection Law (Cash Refund in Cancelled Transactions), 2005
Where: Israel Knesset (Parliament)
When: January 2005
Contents: The new law makes it obligatory to refund cash to consumers when
returning purchased goods to merchants. If customers return purchased
goods within ten days of their purchase, they will be entitled to a cash
refund.
This is conditional on the goods being unused or damaged. Alternatively, the
consumer has a choice of accepting credit in lieu of cash.
Comments: The Minister of Industry and Commerce must determine which goods will
be governed by the law. As of yet, he has not done so.

ITALY
Maria Luisa Cassandro & Felix Hofer
Hofer Lösch Torricelli
mlcassandro@hltlaw.it
fhofer@hltlaw.it
www.hltlaw.it
1. Legislation
Topic: Misleading advertising - tougher sanctions
When: Coming up – currently in Parliament (March 2005)
Where: Italy
What Happened: The Italian Parliament is currently discussing a bill, meant to amend the
existing law on misleading advertising (Law by Decree no. 74 of January 25 th ,
1992).
The new provisions aim at preventing, in a more effective way, incorrect
presentations of products or services in home-shopping TV programs or in
Internet offers.
While up till now the Market and Competition Commissioner (the domestic
authority competent on supervising) had very limited powers at its disposal
to react to misleading or incorrect comparative advertising (basically it could
issue a desist order), the new provision would also allow to deliver an
injunction for corrective messages and to apply fines from 1.000 to 100.000
Euro.
The fine’s amount would depend on the harm caused by the misleading
promotional message. Elements to be considered to that purpose would be:
the diffusion of the message, its misleading potential and effects on health or
security and on children. When negative effects on health or security or on
children are involved, the fine’s minimum amount could not be less than
25.000 Euro.
Finally, in cases of non-compliance with a corrective injunction, the authority
would be entitled to suspend the offending company from doing business for
a period up to 30 days.
Comments: It’s not hard to predict that the new provisions will have some significant
impact on the advertiser – agency relationship. Companies hit by fines or a
business suspension order are likely to seek relief from agencies and
advertising practitioners doing wrong in preparing promotional campaigns.
2. Self-Regulation
Topic: Religious sensitivity – offensive advertising
Who: Billboard and Press advertising of a French fashion house
When: Winter 2004
Where: Italy – France - UK
What Happened: During last winter a French fashion house ran an advertising campaign,
throughout Europe as well as in the US, for promoting its latest clothing
collection. The campaign used billboards and press ads featuring a group of
models posing as shown below.

Quite clearly the models are posing in a way that recalls a famous painting
(Leonardo da Vinci’s fresco “The Last Supper”), which is preserved in Milan
at the church of Santa Maria delle Grazie (see the original painting below).
(i) In Italy the Municipality (i.e. City Administration) of Milan, which is in
charge of supervising outdoor advertising, thought that the campaign could
result offensive to the religious feelings of a widespread number of citizens
and therefore decided to ask for a preliminary opinion of the Review Board
of the Institute of Advertising Self-Regulation before allowing the disposal of
the billboards.
In it’s opinion the Review Board held that:
- the ad contained a clear and explicit reference to Leonardo’s painting,
- the painting represents some of the most intimate aspects of Christian belief
(as the celebration of mass & the rite of the Holy Communion) and contain a
concentration of theological symbols,
- for those reasons such representation should not be used for parody and
commercial purposes, being likely to cause offence to the religious
sensitiveness of at least part of the city’s population (interestingly the Board
made clear that the opinion did not intend to consider specifically the
Catholic population, but had to be considered as a criterion, which every
religious group – even a minority – should have the right to benefit from).
Subsequently the Municipality did not permit the billboards to be displayed
on the streets in Milan.

The decision gave rise to an intense discussion, widely reported in national
newspapers and magazines, about ‘censorship’ and ‘freedom of commercial
speech”
(ii) The same campaign also ran into trouble in France, after a billboard had
been displayed in Paris. Beliefs and Liberties, an association linked to the
French Bishops’ Conference, approached a court in Paris claiming that the
ads were not in compliance with the existing laws on blasphemy.
The legal action turned out to be successful as the court in Paris ordered to
stop the campaign, all posters to be removed from billboards within three
days and fixed a daily fine of 100.000 Euro for non-compliance.
Also in this case there have been a lot of critical comments about the court’s
decision, which was felt as an act of censorship contrary to France’s liberal
tradition.
(iii) Interestingly a very similar campaign had a different outcome in the UK.
In this case a TV company’s poster campaign, displayed on billboards
around the UK, depicted the Last Supper in the attitude of a drunken brawl
(see below). A representative of ‘Premier Christian Radio’ has filed a
complaint with the Advertising Standards Authority – ASA over the ad,
assuming that the campaign was blasphemous and offensive to Christians.
Despite the fact that about 250 complaints were filed against said advert, the
ASA cleared the campaign, considering that the promotion concerned an
entertainment event and not a product.
3. Self-Regulation
Topic: ‘Premium Services’ delivered on-line
Who: Mobile Phone Operators
When: 2005
Where: Italy
What Happened: Technological progress in the IT sector and competition in a very attractive
and profitable market have induced Mobile Phone Operators to offer, in
addition to traditional ones, an increasing number of special, “premium”
services.
While such special services certainly result in ‘added value’ to customers, the
strictly ‘personal contacts’ allowed by mobile phones and their peculiar
nature have brought the problem of ‘improper use’ to the forefront.

In this context measures taken to protect vulnerable categories of mobile
phone users – such as children – were considered more and more necessary
in order to prevent misuse with respect to ‘premium services’.
Therefore in February 2005 the Department of Communication (Ministero
delle Comunicazioni) in cooperation with the three leading Italian Mobile
Phone Operators has promoted the adoption of a new “Code of Conduct”,
specifically aimed at regulating the provision of ‘premium services’, in
particular with respect to protection of children using such services.
The new Code introduces provisions meant to:
- grant safer use for customers accessing chat line services,
- give clear indication of services with ‘sensitive content’, which may be
accessed only on previous, specific, and detailed information about the
nature and cost of such services,
- to offer parents and guardians suitable technical means, apt to exercise
proper control on accessibility of services with sensitive content by children
and minors (e.g. PIN codes, access disabling devices, etc.).
The new self-regulation system also provides for a “Guarantee Committee”
(which representatives from the Department of Communication as well as of
the Mobile Phone Operators are sitting on) in charge of supervising the
implementation of the code’s guidelines. In addition the Committee is called
to periodically update the code of conduct and to come up with proposals for
solving new problems arising with respect to the ‘premium services’.
4. Self-Regulation
Topic: Decency
Who: Fashion companies: offensive billboards and commercials
When: January 2005
Where: Italy
What Happened: Fashion companies apparently still insist in considering soft-porn or
offensive behaviour as effective and appealing marketing tools for targeting
their existing customers as well as potential new clients.
In recent years the local industry self-regulation (as administered by the
Institute for Advertising Self-Regulation – IAP) frequently had to deal with
complaints over offensive advertising related to the fashion industry.
In January 2005 the IAP was called to handle two cases concerning
campaigns promoting fashion products.
(i) The IAP’s Review Board took action against a poster displayed on
billboards in Milan, showing a female model posing in provocative/inviting
attitude and wearing only sexy, black lingerie, with gloves, yellow high heels
and an ostrich stole.
Considering the dimension of the posters and its locations, the Review Board
felt that the campaign fell short of complying with the self-regulation code’s
provisions on fairness in advertising (Section 1), human dignity (Section 10)
and children and adolescents (Section 11). Subsequently it issued a desist
order.
(ii) In another case the Review Board submitted a TV commercial to the Jury

for a decision. The commercial intended to promote a watch, showed a
young couple meeting at home, having dinner, the young man offering the
promoted watch as a gift to his female partner, and exchanging tender
caresses. Suddenly the magic of the moment gets interrupted by the couple
jointly emitting farts.
In the Board’s view the commercials exceeded the limits of simple bad taste
and had to be held in violation of the code’s prescriptions on violence,
vulgarity, indecency (Section 9), moral, civil, and religious beliefs and human
dignity (Section 10), children and adolescents (reference is to section 11, in
particular to the provision requiring that “advertising must not induce children
and adolescents to: … violate rules of generally established social behaviour”) and
fairness in advertising (section 1, reference is made to the provision
according to which “Advertising must be honest, truthful and correct. It must
avoid anything likely to discredit it”).
The Jury did not agree on the advertisers and on the agency’s defence, trying
to present the commercial as “strongly ironic” and provocatively funny, but
not meant to result in an invitation to unconventional behaviour, and felt
that:
- claims made and situations presented have to be evaluated taking the
general public’s sensitivity into proper account,
- limits to a certain behaviour certainly do depend on the historical moment
and on the social context,
- nevertheless it could hardly be affirmed that the current historical and
social context had already succeeded in transforming farts into a behaviour
respectful of the rules of common decency, a useful tool for means of
communication or into a valid expedient for resolving embarrassing
situations,
- even if farts are something that happen and may be considered as ‘normal
functional events’, the appraisal from the general public is still oriented in
rather negative terms and tend to relegate them to very intimate moments.
Therefore the Jury stated that the principles set by Sections 9 and 11 of the
code had been violated and issued a desist injunction.
5. Self-Regulation
Topic: Imitation/Denigration – TV commercial
Who: Automotive: German vs. Italian car
When: January 2005
Where: Italy
What Happened: A renown German car producer approached the Italian Advertising Self-
Regulation system with a complaint:
- explaining that its new Series 1 model had been recently promoted with the
following slogan: “when you’re born, when you’re growing up, when you’re
playing, when you’re confronting yourself, when you’re falling in love, when you’re
at home, when you’re eating, when you’re sleeping, when you’re jumping, when
you’re falling, when you’re waiting, when you’re coming to a stop: Why be just one
among many?” (during the commercial ordinary people were shown in
situations correspondent to the statements, while at the end the new car
emerges from a tunnel, is shown in various positions and the headlines says:
“The new XYZ 1 Series: One like no one"; in another, similar version the
commercial ends with the statement: “Why being just one among many, when
you can be one like no one? The new XYZ 1 Series, One like no one"),
- affirming that an Italian car producers started presenting one of its new

models through a clear and illicit imitation of the other campaign (the Italian
car’s commercial used a jingle very similar to the one present in the German
car’s promotion and the following slogan: “If you’re number one in class, you
have zero friends; if you’re number 1 for your girlfriend, later on there will come no.
2, 3, 4 and 5; if playing soccer you get the number one [the goalies number], what
when you get eight goals per play scored; why being an indistinct number one, when
you can be number 147 [the no. of the Italian car’s model]? The new 147. One like a
147”; in addition the car was shown coming out from the dark),
- arguing that the competitor’s campaign had to be considered as violating
sections 13 and 14 of the advertising self-regulation code (reference is made
to the provisions on imitation, confusion and exploitation and on
denigration).
The defendant defended its campaign by assuming that:
- the German company had launched its new car model through a very
aggressive advertising, meant at suggesting that only those buying the new
XYZ car could profile themselves with respect to the broad mass of car
owners, while all other cars of the same quality range are presented as
ordinary, if not mediocre products,
- subsequently it had to react to a campaign denigrating its cars,
- the German competitor’s campaign did not contain “original ideas”, but
presented truly common situations and elements,
- the so-called ‘counterpoint technique’ used in the Italian campaign could
not result in undue exploitation of the German company’s well-known
market image, as such effect occurred only when one of the competing
brands/products was significantly less famous than the other (a
circumstance which certainly could not be affirmed with respect to the two
competing car producers)
The Jury found (Decision no. 17, dated February 11 th , 2005) that:
- Section 13 of the Code intends advertising campaigns to restrain both, from
imitating a competitor’s promotion causing confusion in the targeted public
as well as from ‘hooking’ its claims, statements or presentations to those used
by others in a way apt to transfer the public’s perception from the
promotional effect of the first campaign to that of the second,
- the Italian company had fallen foul on both aspects considered by the code
as a violation, as it had given its campaign a structure, which by no means
could be read as accidentally close, but clearly appeared aimed at imitating
the competitor’s advertising (in detail the Jury referred to the filmic
structure, the visual presentation of the product, the slogans, the music, the
situations represented),
- the effect of exploiting another company’s notoriety frequently does (but
not necessarily has to) occur between competitors with differing brand
awareness in a certain market, nevertheless it can give rise to equally
detrimental results, when such effect involves – as in the specific case -
companies both well known by the targeted public, as the company seeking
the ‘perception transfer’ basically intends to ‘neutralize’ the promotional
drive of the competitor’s campaign,
- even a previous denigrating campaign – eventually performed by the
German company – could justify a reaction from the Italian company
resulting in violation of the code,
- finally, contrary to the complainant’s assumptions, the Italian company’s
campaign did not contain statements or elements causing denigration to the
German company’s image or to its products (subsequently no violation of
Section 14 of the Code was found).
On these grounds the Jury issued a desist order with respect to the Italian car

producer’s campaign.
6. Self-Regulation
Topic: Comparative Advertising – TV commercial
Who: Phone Operators
When: October 2004
Where: Italy
What Happened: The leading Italian Telco (A) required action from the Advertising Self-
Regulation’s Jury through a complaint filed against a competitor’s (B)
campaign, which highlighted the appealing low costs of its phone services
and compared the rates of competing phone service operators.
In the commercial a testimonial showed a poster declaring: “this is a A’s bill,
when I was on the phone on carrier A, it was very expensive, for evening trunk-calls
the minute rate is Euro/cent 3,10; now, I’ve switched to carrier B, and it’s only
Euro/cent 2”; furthermore the testimonial claimed: “it is a great difference, isn’t
it? Especially for my pockets”.
During the commercial a headline slide appeared, stating: “The operators’
traffic bonuses are excluded”; moreover in the lower part of the screen, another
headline slide informed: “Comparison among minute rates on July 30th, 2004.
Options and/or special flat rates excluded. Long distance calls from 6.30 p.m. Charge
to reply not included”.
The claimant (A) argued that the comparison was illicit and infringing the
Code of Advertising Self-Regulation (CAP). In particular, Company A
explained that all subscribers to its services every two months were entitled
to receive the following benefits: a 1 1/2 hour bonus of free local calls and a
half an hour bonus of long-distance calls, charge to reply included.
On these premises, A claimed that B in its promotional messages (and in the
context of a comparative advertisement) hid from the public the free calls
bonuses offered by A. Those bonuses, unconditionally applied to all
subscribers, significantly reduced the costs of the phone service delivered,
but such benefits were not correctly perceived by consumers viewing B’s
commercial, where the particular reduction did not emerge from the
statement excluding the bonus from the comparison.
Therefore, according to Company A the commercial resulted in violation of
the Code’s provisions on misleading advertising (Section 2), on denigration
(Section 14) and comparative advertising (Section 15).
Specifically, company A felt that the statement “Operators’ traffic bonuses are
excluded” in B’s commercial was likely to mislead consumers on the actual
costs of calls processed by A, suggesting that B’s rates would always result
cheaper than those applied by A. Finally the complainant considered B’s
statements – suggesting a greedy attitude of A as to service’s costs charged
on subscribers - as denigrating.
Company B argued in its defence that the message was clear in stating that
the comparison concerned only minute rates while bonus and special flat
rates were excluded. The headlines containing such information were sliding
slowly over the screen, were perfectly readable and repeated by the speaker.
As to the denigrating effect, B argued that the commercial was lacking of any
deceptive implication with respect to the competitor’s service.

The Jury found that:
- company B’s campaign resulted in illicit comparative advertising, likely to
mislead consumers,
- phone operator B’s rates were not always and absolutely cheaper than
charges made by A (in particular the bonuses granted from A to all
subscribers determined that only from a certain level of traffic on B could
claim to be cheaper than A),
- subsequently the claims contained in the commercial (suggesting the
opposite) appeared apt to mislead viewers,
- denigration occurred as the testimonial’s gestures and statements were
likely to induce viewers to believe that operator A’s attitude when billing its
phone services was that of a greedy company.
Therefore the Jury ordered company B to stop any further diffusion of the
particular commercial immediately.
Comments: This case is an eloquent example of how tough competition currently is in the
market of phone services. While the break of the monopoly position of the
only former national carrier clearly resulted in a huge benefit to users, it’s
also obvious that nowadays a harsh battle takes places among phone services
operators in order to attract as many clients as possible. Price competition
and aggressive advertising campaigns are key aspects of the ongoing
struggle for increased market shares. Commercial promotions frequently are
close to the edge of correct advertising and therefore more and more
industry self-regulation control authorities (e.g. the Market and Competition
Commissioner, competent on misleading and incorrect comparative
advertising) exercise close scrutiny on companies active in the sector of
phone services.
7. Legislation
Topic: Intellectual Property – A Consolidated Act
When: March 2005
Where: Italy
What Happened: On March 19 th , 2005 the new Italian ‘Industrial Property Code’ (Law by
Decree no. 30 dated February 10 th , 2005) came into force.
The new Code consists of 245 sections and substitutes a total of 39 laws,
which previously ruled different aspects of intellectual property.
The consolidated act intends:
- to introduce a simplified and harmonized legal framework for governing
important aspects of fair market competition and important sectors of
domestic economy,
- to enforce protection of industrial property in accordance with the
principles set by the EU’s directives and regulations as well as by national
statute law,
- to redefine the competences of the local patent and trademark offices,
- to grant proper protection to inventions resulting from academic or
scientific research.
8. Legislation -
Guidelines
Topic: Data Protection: Intelligent labels – Fidelity cards
Who: Privacy Commissioner

When: March 2005
Where: Italy
What Happened: The local independent Authority (i.e. the Privacy Commissioner), competent
on supervising proper domestic enforcement of the general principles
established by the EU-Directives on protection of personal data, recently has
come to focus its attention on two ‘hot topics’.
(i) The Authority felt necessary to deal with issues and problems linked to
Radio Frequency Identification – RFID technology and particularly to socalled
‘intelligent labels/packaging’.
Specific guidelines have been issued in order to grant sufficient protection to
personal data handled with the process of application of such technology.
The basic principles set by the Commissioner’s guidelines require that
processing of personal data through RFID technology involves:
- adequate information to subjects who’s data are handled,
- possibility for those subjects to express specific consent for the processing of
their data,
- possibility to disable the chips allowing such processing.
In detail the guidelines establish that:
- the public has to be made clearly aware of the fact that RFID technology is
applied and that devices able to track “intelligent labels/packaging” are in
place (such alert must be provided on products’ packaging as well as in
locations – e.g. shops – where such technology is in use),
- private subjects may apply RFID technology only after obtaining specific
and explicit consent from the targeted public and such consent may not be
achieved through improper pressure or conditioning,
- ‘intelligent labels’ have to be placed in a way that allows customers to
disable them easily after the product’s purchase (basically RFID chips should
not remain active after the cashier barrier; finally such chips may not be
placed in a way that they interact with the product’s functionality)
- RFID technology applied to control access to restricted areas has to consider
and respect employee’s rights and liberties,
- subcutaneous chips (to be previously approved by the competent authority
as to their technical function) may be placed only in exceptional cases and for
justified purposes of health care/protection (the implantation of such devices
has to be kept strictly confidential and the interested subjects may ask for
removal at any time),
- the use of RFID technology has to be proportionate to the purposes aimed
at and the data collected may be stored only for a reasonable period of time,
- whoever applies such technology, has to grant proper safety measures in
order to reduce the risks of destruction or loss of the collected data as well as
of undue access to or mishandling of them,
- the collection of data, performed through means of electronic
communication, allowing to locate a person/product geographically or
aimed at data subject’s ‘profiling’, have to be notified to the Privacy
Commissioner prior to the start of such procedure.
(ii) Acknowledging the widespread use of so-called ‘fidelity cards’ in areas
such as retail, transportation, financial, phone and publishing services, the
local Privacy Commissioner also considered it necessary to set some basic
principles for the processing of personal data (sometimes even of sensitive
data) performed in this particular context.

Considering that the fidelity card system necessarily implies the collection of
personal data of the holder as well as of his family (or of other persons close
to him), the Commissioner has issued some specific rules concerning
“customer fideliciation”, “profiling” and “direct marketing”.
According to those rules,:
- subjects issuing ‘fidelity cards’ are held to clearly and extensively inform
customers about the use of the personal data collected (such information has
to be provided in the subscription form and in the terms and conditions of
the service),
- proper evidence has to be given as to eventual, additional use of the
collected data for purposes of ‘profiling’ or of ‘direct marketing’ and a free
choice as to allowing/denying such additional use must be offered
(subscription to the fidelity card service has to be unconditional of consent to
data’s use for ‘profiling’ or ‘direct marketing’ purposes),
- companies offering ‘fidelity card’ services have to make strict and
minimum use of the data collected (i.e. they must restrain from collecting not
relevant data or from using the excessively),
- consent is not required for the use of data that are necessary for delivering
to subscribers the benefits offered by the fidelity card service (e.g. data for
identifying the subscriber or the global amount of expenses made through
the card; but no specific product identification is allowed),
- ‘profiling’ requires specific, explicit consent form the data subject, but no
‘sensitive’ data (i.e. those concerning health, religious beliefs or political
opinions, etc.) may be processed to that purpose (companies performing
‘profiling’ in combination with fidelity card services have to file an inadvance
notification with the Data Protection Authority),
- for marketing purposes, data necessary for submitting advertising material
or commercial communication may be used, with data subject’s consent,
- data collected for the purpose of ‘profiling’ may be stored and kept for no
more than one year, those collected for direct marketing purposes no more
than two years,
- companies offering fidelity card services are also held to adapt proper
safety measures in order to reduce the risks of destruction or loss of the
collected data as well as of undue access to or mishandling of them.
9. Case Report
Topic: Intellectual Property - DRM
Who: Association of producers of audiovisual supports
When: March 2005
Where: Italy
What Happened: As in many other countries, in Italy anti-piracy strategies aimed at fighting
copyright infringements due to unauthorized copying/downloading of
protected material do rely on a special levy, which legislators have built into
– as a surcharge - the price everyone purchasing a special device or
audiovisual support is called to sustain.
The peculiar system is applied in Europe, on a global basis, by all countries
members to the European Union and has its legal support in the provisions
of the European Union Copyright Directive (Directive no. 29/2001/CE) as
well as in the domestic implementing provisions. The levy is meant to
compensate authors for loss of copyright fees suffered in connection with
widespread unauthorized copying or downloading practices.

In Italy, the above-mentioned Directive was implemented in April 2003 and
the particular surcharge – ranking between Euro 0,23 and Euro 0,87 per
device/support – is administered by the local Collecting Society – SIAE
(which is also in charge of administering the copyright fees).
In parallel to a substantial increase of the levy, producers of
recordable/rewritable supports were faced both, with a consistent raise of
their products' end-price and with a significant reduction (approximately
between 40% and 60%) of their products’ sales.
At this point the situation heated up and the relations between the Collecting
Society and the local associations of producers of multi-medial systems and
supports (ASMI, having among its members all the leading, multinational
companies) as well as of electronic editors (nowadays national association of
multi-medial services and contents – ANEE, a section of ASSINFORM)
became definitively tense.
While the Collecting Society felt that there was not much to do about the
problem, having the levy being introduced by an EU-Directive and the
domestic implementing provisions, the associations argued that the system,
on the one hand, was “legitimating” piracy practices, on the hand, offered
unjustified advantages to authors and implied unbearable economic burden
for consumers. In detail the associations explained that as a matter of fact a
consumer was likely to be hit as much as four times, i.e. when buying: an
recorded audiovisual support (as a CD, a DVD, a videocassette), an
electronic recording devices, a specific software (for ’burning’ a support),
finally a non recorded, ‘virgin’ support.
In the Collecting Society refusing to recognize the problem and to discuss the
issue with the two associations, the latter decided to take legal action and
filed a lawsuit before a Court in Milan.
The lawsuit, filed against the Collecting Society SIAE, intends to clarify
whether the particular levy complies with the basic principles of the Italian
Constitution and with the fundamental provisions of EU-Community law.

JAPAN
Wilfred Wakely
Aiba & Partners
wakely@aiba.chuo.tokyo.jp
1. Topic The New Japanese Privacy Law
Where: Japan
When: April 1, 2005
What Happened: As of April 1, 2005, all businesses with databases containing “personal
information” in Japan, must comply with the Law Concerning the Protection
of Personal Information (herein “PIPA”).
The law has its antecedents in both the recognition of “privacy” as a legal
right and earlier laws about the protection of privacy. However, those laws
were aimed primarily at local and national government institutions, such
protection has been extended to the private sector, and now, businesses
meeting a certain threshold must abide by certain obligations when
collecting and disseminating “personal information”.
Personal Information consists of that information which identifies a
particular living individual. Consequently, PIPA applies to that information
- such as names, addresses, telephone numbers - which can identify a
particular person.
PIPA provides a rather large number of duties for businesses to follow.
Foremost among these duties is that businesses must publicly announce and
provide in advance to the individual the purpose for obtaining an
individual’s personal information and how such personal information will be
used. Further, the business must go about obtaining the personal
information in a fair and non-fraudulent manner.
Businesses are also obliged, depending on the type of business, to install and
maintain a number of internal regulations and procedures to insure the
accuracy of the information, prevent accidental “leakage” of such
information, and respond to individual’s requests pertaining to their
personal information.
Persons from whom personal information is obtained possess a certain
amount of rights with regard to the information. These include the right of
disclosure what information is held by a business, the right to correct
erroneous information, and the right to request that the business cease all use
of such information.
An additional important feature to the law is that an individual’s consent is
now required when a business wishes to disclose personal information to a
third party. However, PIPA contains an “opt-out” feature which allows
businesses to share information with other companies where the individual
is informed beforehand that his or her personal information will be shared
with specified companies, for a specified purpose, and further informing the
individual what information will be shared, how such information is
collected, and the individual’s right to request that such provision cease.

PIPA is a fairly comprehensive law providing a general listing of duties for
businesses, but, like much of Japanese law, PIPA delegates the responsibility
for further interpretation to various government ministries acting within
their jurisdictional boundaries.
In addition to interpretation of PIPA, the ministries are allowed to administer
the punitive portions of the law. In most cases, ministries can issue
admonishments to businesses in violation of PIPA. However, when a
business disobeys an admonishment or in other exceptional cases, the
ministries are empowered to issue a cease and desist order or impose penal
sanctions in the amount of 300,000 Yen or six months imprisonment.
2. Topic Advertising: Regulation of Advertising related content under “Japanese
Law”
Where: Japan
What Happened: With regard to advertising, “Japanese law” as an independent legal regime is
somewhat of a misnomer – the regulation of advertising is carried out by
both the government and various advertising industry groups. The
difference between the two organizations can be seen in their individual
approaches to the regulation of advertising content.
Governmental regulations are themselves “active”, in that they proscribe
certain conduct relating to the relative truthfulness of an advertisement’s
claims. On the other hand, industry regulations may be viewed as “passive”
in that adherence to industry standards regarding the “appropriateness” of
advertising content determines, in large part, whether or not a particular
advertisement is broadcast.
A Legislative Framework
On the active side, the following laws are primarily involved in Content
Regulation.
The Anti-Monopoly Act or “AMA” prohibits of ‘unfair trade practices’,
which may take the form of improper customer enticements in advertising
and marketing activities. Improper customer enticements may take the form
of deceptive advertising, misleading representations, as well as excessive
premium offerings.
The Premiums and Representations Act or “PMA” augments the scope of the
AMA by further prohibiting illegal premiums and representations affecting
consumers and expediting enforcement.
The Consumer Protection Act was enacted originally in 1968 to respond to
consumer complaints, but was amended in 2004 to include standards and
labeling regulation consumer interests. The Act itself does regulate, per se,
but serves as a general directive to national and local governmental
organizations to establish consumer standards.
The Pharmaceutical Law applies claims made with regard to drugs, “quasidrugs”
and cosmetics. False or misleading statements regarding effects or
usage or expiration dates are prohibited. In addition, false or exaggerated
claims of the “name, manufacturing method, efficacy, effect or performance
of quasi-drugs” are prohibited.
Remedies and Claims under the AMA and PMA include administrative

cease and desist orders, administrative surcharges, private tort claims, and
criminal charges. In addition to oversight and controls by health inspectors,
violation of the Pharmaceutical Act carries possible criminal sanctions.
B. Industry Self-Regulation
Industry regulation is the “passive” side of Japanese law with regard to
advertising content regulation. As mentioned above, consistency with
industry standards of “appropriateness” largely determine whether or not a
particular advertisement will be run in the Japanese media.
The Japanese advertising industry consists of roughly 6 major associations
comprising advertising, print, and broadcast media. These associations have
established the Japan Advertising Review Organization or (“JARO”) to
handle manage advertising complaints and claims pertaining to advertising.
JARO possesses a series of ethical guidelines requiring adherence to
standards of truth, youth interests, consumer protection, social customs,
relevant laws, and public policy. In practice, JARO receives complaints, and
then forwards them on to ad agencies or media outlets for further handling.
These organizations engage in a sort of private regulation in conformance
with their own standards.
Finally it worth noting that regulation does not only exist at the public and
industry level. In actuality, a great deal of influence upon the acceptability of
advertising content is in the hands of the pressure group. Indeed, social
pressure groups represent tangible public response to advertising content,
and actively protest to industry organizations about advertisements with
content objectionable to discrimination, sexuality, alcohol, and other social
norms.

LUXEMBOURG
Laurent Fisch & Oliver Huth
Molitor, Fisch & Associés
laurent.fisch@mfa.lu
oliver.huth@mfa.lu
www.mfa.lu
1. Legislation
Topic: Competition law – direct marketing via telephone and insurances
Where: Luxembourg
What Happened: At the moment, there are no rules in relation to direct marketing via
telephone, except the general rules of the law of 30 July 2002 concerning
commercial practice, unfair competition and comparative advertising (as
amended).
For the sector of direct marketing and insurances, the Luxembourg
parliament has now submitted a bill concerning the modification of the law
of 6 December 1991 concerning the insurance sector (n° 5409 “projet de loi
portant modification de la loi modifiée du 6 decembre 1991 sur le secteur des
assurances”). The bill provides for the opt-in system as regards sales via
phoning i.e. a consumer has to give its prior consent to be contacted by the
insurance via telephone. The bill does not regulate the door-to-door sale that
will still be possible.
Topic: Competition law – advertising via e-mail
Where: Luxembourg
What Happened: The advertising via e-mail is now covered by the law of 14 August 2000
concerning electronic commerce, as amended by the law of 5 July 2004
concerning electronic commerce.
Under the new Luxembourg law, the so-called opt-in system applies now to
all advertising via e-mail. Hence, every customer has to provide its prior
consent to the use of its data for promotional and commercial purposes. As
soon as a potential customer orders goods via the internet and, therefore,
provides data such as its name and e-mail address, the vendor must provide
a clear and expressly stated possibility to oppose to the further use of the
provided data. Only if the customer does not oppose, i.e. does consent the
vendor may use the data for further promotional and commercial purposes
of similar goods.
2. Case Law Report
/ Legislation
Topic: Trademark law
Who: Luxembourg District Court (Tribunal d’arrondissement de et à Luxembourg)
When: July 14, 2004
Where: Luxembourg
What Happened: A company N. sold T-shirts showing the logo of the applicant, the Company
Q., with the French possessive adjective “my” preceding this logo. By this
combination, reference was made to a French vulgar expression.

The Court held the trademark was used without justification and that illegal
profit was made by such use of the trademark of Q. The fact that the
respondent had in the meantime ceased the selling of these T-shirts did not
make the claim inadmissible. The Court argued that the prohibition to sell
constituted the sanction foreseen and would serve as means to prevent future
violation.
The Company N. was condemned to cease the selling, such ceasing to begin
15 days after notification of the judgment.
Topic: Unfair competition – Law of July 30, 2002
Who: Luxembourg Court of Appeal (Cour de Cassation)
When: November 11, 2004
Where: Luxembourg
What Happened: The Cour de Cassation had to deal with a judgment rendered by the previous
instance concerning the application of the Law of July 30, 2002 concerning
unfair competition. More specifically, the previous instance had permitted a
certain professional lobbying entity to file a claim to cease and desist on the
sole ground that a situation of competition between the claiming federation
(an entity recognized to seize court under the Law of July 30, 2002) and the
respondent.
The Court of Appeal held that this condition was insufficient to permit the
claimant to request cease and desist actions and judged the verdict of the
previous instance violated the Law of July 30, 2002, as the requirements for a
cease and desist claim had not been fulfilled.

MALAYSIA
Patrick Mirandah
patrick mirandah co. sdn bhd.
pmirandah@mirandah.com
www.mirandah.com
1. Title MALAYSIA URGED TO RATIFY TOBACCO TREATY
Topic: Tobacco advertising
Where: Malaysia
When: 1 st March 2005
What Happened: The Malaysian Government has been urged to ratify the Framework
Convention on Tobacco Control (FCTC). The FCTC which is the international
tobacco treaty was negotiated under the auspices of the World Health
Organization (WHO).
The call for this ratification is due to the alarming rise in smokers especially
among children aged between 12 and 18 years as well as young women aged
between 18 and 25 years. Statistics have also shown that some 10,000 people
in Malaysia account for the deaths that are directly or indirectly linked to
smoking.
In increasing the awareness of the dangers of smoking especially among
youngsters in Malaysia, The Government here has implemented campaigns
on the dangers of smoking by targeting the young people who have been
steadily contributing to the alarming statistics of young smokers in this part
of the region.
Even with the increase in tariffs on tobacco products by the Malaysian
Government over the past few years, it has not deterred nor has this altered
the smoking culture that is evidently prevalent amongst the Malaysian
youth, male and female alike.
Amongst some of the implementations by the Malaysian Government in
responding to the statistics is the implementation of the ban on the sale of
cigarettes to children under the age of 18 years as well as campaigns in
schools through the media.
Comments With the increased awareness of the dangers of smoking especially amongst
the younger generation, it is hoped that the statistics will see a drastic drop in
the number of young smokers. However, even though tobacco advertising is
not as aggressive as it used to be due to the recent policy changes that have
been implemented by the Malaysian Government in relation to direct
advertising in the various forms of media, tobacco companies are not
showing any visible signs of slowing down and are still raking in the profits
from the sale of cigarettes to consumers.
There is still a great deal of work that remains to be carried out if the
Government is serious in addressing the ill effects of smoking especially
amongst the younger generation. So long as indirect advertising remains a
viable tool for tobacco companies, it then remains to be seen if the Malaysian
Government’s objective in reducing the number of young smokers whilst
promoting a healthy lifestyle among its people can be achieved.

2. Title TELEVISION ADVERTISING LESS STRINGENT?
Topic: Television Commercials
Where: Malaysia
When: 8 th January 2005
What Happened: It was reported recently that a number of advertisements in Malaysia
featuring foreign faces appears to be growing. Most of these advertisements
featuring foreign identities as well as content appeared to have been
produced outside Malaysia.
Although there is a Made in Malaysia (MIM) rule requiring local content in
foreign-made television commercials in order to reflect the Malaysian culture
and identity, there are however, a number of advertisements that have been
steadily featuring foreign faces as opposed to ordinary Malaysians. This
gives the reflection of a somewhat relaxation of the MIM rule and has thus
prompted the question as to whether this MIM rule still applies today.
The MIM ruling was instituted to protect the local film and production
industry. It simply means that all commercials that are aired on Malaysian
television must only contain Malaysian talent with a minimal allowance of
foreign content amounting to 20%.
Exemptions however are subject to the approval of the National Film
Development Corporation Malaysia or most commonly known as FINAS.
The Association of Accredited Agents Malaysia has said that this relaxation
of the MIM ruling should go ahead as it is for the betterment of the
advertising industry. As there is now self regulation in the communications
and multimedia industry with the implementation of the Content Code, the
relaxation of the content code augurs well in terms of development for the
industry.
Comments With the relaxation of the MIM ruling, local production companies stand to
loose by the removal of the foreign barriers which had served as a form of
protection against larger players from the overseas market. There is now a
more level playing field.
As Malaysia heads towards globalization, local production houses will now
have no choice but to gear up for a more challenging environment in the face
of competition from the overseas players.
3. Title VIRAL ADVERTISEMENTS
Topic: Internet Advertising/SPAM
Where: Malaysia
When: March 2005
What Happened: There seems to be a proliferation of spam advertisements (unsolicited
advertisement forms) in the Malaysian internet space.
The modus operandi is simple at this stage. An advertisement can be placed
in a host site for free with usually some minimal catch. One such catch is for
the advertiser to provide 50 e-mail addresses for the placement.
Viral advertisements are generally low cost commercials which appear online
and placed by the host for a low cost or for such a minimal
consideration.

In one such case, a Volkswagen car was used to feature a suicide bomber.
The ‘pun’ in the advertisement was that the car was packed with explosives
and with a final tagline:
“SMALL BUT TOUGH”
Volkswagen is demanding an apology from the 2 originators of the viral
advertisement together with an apology and undertaking that the originators
of the viral advertisement will not infringe Volkswagen’s trade marks in
future.
Comments It will be interesting to see if more viral advertisements will dominate the
internet space in the future.
Currently there is no legislation to arrest the growing spam problem in
Malaysia.

NEW ZEALAND
Monica Choy
Hesketh Henry
monica.choy@heskethhenry.co.nz
www.heskethhenry.co.nz
1. Title Advertising Standards
Topic: Expert statutory bodies advertisements will not easily breach the Codes of
the Advertising Standards Authority
Where: New Zealand
When: February 2005
What Happened: A Ministry of Health television advertisement advocating safe sexual
practices showed a hip hop concert in cartoon genre, where the performer
and audience repeated the refrain "If you don't got the rubber, there will be no
hubba hubba". Switching to reality, a voiceover said, "More New Zealanders
than ever before have HIV. Whoever you are having sex with, use a condom. It’s
your only protection".
A number of complainants expressed the view that to treat an issue as
significant as sex with clichés such as "no rubba, no hubba hubba" offended
common decency and gave the impression that sex is trivial. Complainants
also said that the style of the advertisement was aimed at young teenagers
who are often too young to be aware of the emotional impact on them of
engaging in sexual activity.
The Advertising Standards Complaints Board is a self-regulatory body that
deals with advertising in New Zealand and refers to various codes of
practice including the Code of Ethics for guidance.
The Complaints Board found that the advertisement did not meet the
threshold to cause either serious or widespread offence in the light of
generally prevailing community standards and was not in breach of the
advertising codes. The Complaints Board referred to a previous Appeal
Court judgment that cautioned the Complaints Board "to tread carefully in
relation to such matters as the public education advertisements of the [electoral]
commission and similar public authority to ensure that it does not substitute its
views for those of an expert body charged with particular responsibility".
As the Ministry of Health was an expert body charged by statute with
particular responsibilities, including public education, the Complaints Board
found that the advertisement advocated a highly socially responsible health
message and did not offend the Advertising Code of Ethics.
Comments: Advertisements of public authorities that relay public education messages
will rarely be held by the Advertising Standards Authority to be in breach of
its Codes of Advertising.

2. Title Anyone for Chocolate?
Topic: Unsuccessful opposition to a trade mark application
Where: New Zealand
When: November 2004
What Happened: Cadbury Limited has successfully secured trade mark registration in New
Zealand for the colour purple in relation to "block chocolate, chocolate in a bar or
tablet form".
The trade mark application was filed in July 1999. Initially, four parties
showed an interest in opposing the application, however, in the end only one
opponent proceeded. The application was considered under the provisions
of the old Trade Marks Act 1953 as it was filed prior to the Trade Marks Act
2002 coming into force.
The main grounds of opposition considered that:
a. the colour mark was not a trade mark within the meaning of
Section 2 of the Act; and
b. the mark did not meet the criteria for registerability under
Sections 14 and 15 of the Act.
The Assistant Commissioner found that in relation to the challenge under
Section 2 of the Act, that the Act did in fact contemplate single colours being
registerable and such colours were capable of graphic representation.
(IPONZ now requires Pantone shade or similar to be provided for all colour
trade mark applications in order to meet the requirements for registration).
It was found that the evidence did not support the opponent's assertion that
the colour purple was inherently generic for fruit-flavoured chocolates,
especially berry or raisin flavoured.
The Assistant Commissioner then addressed the question of whether the
trade mark had sufficient distinctiveness to be registerable under section 14
or Section 15 of the Act. The parties accepted that single colour marks have
very low inherent distinctiveness. The main issue was whether the mark had
acquired factual distinctiveness through use sufficient to be registerable.
It was found that the evidence showed that the applicant had made specific
efforts to educate the public to see the colour purple as its trade mark and
had used the colour purple extensively since the 1920's as a main background
chocolate for the packaging of its colour products. This meant that the public
were in fact likely to see the mark this way. The conclusion further was
supported by survey evidence showing a strong association held by the
public between the colour and the applicant. The application for trade mark
registration of the colour purple was therefore successful.
Comments: It appears in New Zealand that in order for a single colour mark to be
registerable, a very significant degree of use must be shown together with
evidence that the relevant section of the public associates the colour with
such goods as well as evidence that the applicant has educated the relevant
section of the public that the colour is used as an indication of origin of the
goods involved.

3. Title Credit Card Companies Prosecuted
Topic: Misleading and deceptive conduct
Where: New Zealand
When: December 2004 onwards
What Happened: The Commerce Commission has filed criminal proceedings against five
banks, two credit card companies and one financial services company
following an industry-wide investigation into the disclosure of international
currency conversion fees.
The Commission was concerned after several banks and credit card
companies in New Zealand were charging conversion fees on overseas
currency transactions without disclosing these to cardholders. For overseas
purchases, a credit card statement would typically set out the foreign
purchase price on a transaction alongside the New Zealand dollar amount
for payment.
"The Commission alleges that the fact these statements represent to cardholders that
overseas purchases made on their credit/debit cards are converted into New Zealand
dollars at a prevailing exchange rate is likely to be misleading because the exchange
rate includes embedded and undisclosed conversion fees. In some cases the
conversion fees could add up to 2.5% on the New Zealand dollar cost of the overseas
currency transaction for cardholders".
The Commission stated that it is vital that all representations made to
customers are accurate, including telling cardholders whether or not the
exchange rate in their credit card statement included fees.
Comments: Although the individual sums may be small, the overall amount involved
may prove more significant. It will be interesting to see what, if any, refunds
are paid to the individual cardholders concerned.
4. Title Patenting Methods of Medical Treatments
Topic: Patents
Where: New Zealand
When: June 2004
What Happened: Pfizer appealed to the Court of Appeal when the Assistant Commissioner of
Patents found that Pfizers two patent applications in 1997 and 1998 relating
to methods of treatment of psychotic disorders were "not allowable on policy
(moral) grounds (Section 17(1))" under the Patents Act 1953.
It was contended that the Court of Appeal should overrule its earlier decision
in Wellcome Foundation Limited vs. Commissioner of Patents (1983) NZLR385
that methods of treating disease or illness in human beings were not
patentable. Pfizer argued that a series of changes to the Patents Act and dicta
in another Court of Appeal decision allowing patents for Swiss Forms
removed the reasons for the ban given in the Wellcome case.
The Court of Appeal dismissed Pfizer's appeal stating that the decision in the
Wellcome case that a method of medical treatment of humans is not
patentable continues to remain the law in New Zealand. The scope of the
1994 amendments to the Patents Act did not extend to change the position
and any reform of this area of the law should be undertaken through the
parliamentary process. The complexity of the law in this area and the policy
choices required were matters best left to legislative reform.
Comments: A new Patents Bill will be introduced into Parliament in early-mid 2005

although it is not anticipated that the new legislation will come into force
until some time in 2006. Among the changes to the legislation which have
been widely signalled by the Ministry is an amendment to the Patents Act
1953 to specifically exclude from patentability inventions for "diagnostic,
therapeutic and surgical methods for the treatment of humans".
5. Title Claims of 100% leave no room for ambiguity
Topic: Misleading and deceptive labelling
Where: New Zealand
When: December 2004 onwards
What Happened: The Commerce Commission has recently reminded all traders that there is no
room for ambiguity when making absolute claims about the composition of
their products. Recent Commission investigations into the juice, leather and
feather and down industries have all raised similar issues under the Fair
Trading Act 1986. The Fair Trading Act prohibits misleading and deceptive
conduct in trade.
The Commission is concerned about misrepresentations made by traders
about the composition of products, and the misuse of absolute claims such as
100%. Under the Fair Trading Act it is imperative that all claims made as to
the nature and content of a product are of the highest levels of accuracy.
In 2003 the Commission investigated 11 fruit juice companies, resulting in
two successful prosecutions and undertakings by five companies to make
changes to their labels or website content. A number of the breaches related
to misleading representations with respect to "100%" juice – when the
products contained concentrate.
More recently, the Commission investigated claims being made in the leather
industry following complaints about retailers that have been selling lookalike
part-leather products as though they were genuine leather. The
Commission considered that representing these look-alike products as "100%
leather", "genuine leather", or as simply "leather" may mislead consumers
about the real nature of the product they are purchasing.
In the feather and down industry the Commission recently completed an
investigation following a complaint alleging significant differences between
the down content labelling and the actual down content of individual duvets.
In one case, a duvet labelled as 100% goose down allegedly contained only
78.5% down, of which 35.9% was duck down.
The Commission commented that "in any industry, where a trader makes a
representation that a product is manufactured to or composed of a particular
percentage then that percentage must be met or exceeded".
Comments: Traders need to ensure that any advertising or product labelling does not
mislead consumers or misrepresent key components of a product. The Fair
Trading Act is consumer legislation designed to protect the consumer and
enable a consumer to make an informed decision based on factual
information. Anything else could amount to a breach of the Fair Trading
Act, which can attract fines of up to $200,000.

6. Title Therapeutic Services Advertising Code
Topic: New Advertising Code
Where: New Zealand
When: 1 February 2005 onwards
What Happened: All advertisements for therapeutic services (defined as therapeutic, medical
or health services or services which claim a therapeutic purpose) must
adhere to the principles and guidelines set out in this Code. The Code is
effective from 1 February 2005 and is designed to ensure that advertising for
such services will be conducted in a manner which is socially responsible
and does not mislead or deceive a consumer. A high standard of social
responsibility is expected of such advertising as the Code recognises that
consumers rely on therapeutic services for their health and wellbeing.
Muscle Marketing USA Limited was recently fined $70,000 for breaching the
Fair Trading Act in relation to its sports performance enhancing product ATP
Advantage Creatine Serum. Muscle Marketing USA was found guilty of
making false representations in promotional material and labelling regarding
the quantity of creatine in its ATP Advantage Creatine Serum product and
the benefits that people would get from using it. The Commission found in
this case an example of where consumers are utterly reliant on claims being
made by the company because they have no realistic means of checking the
actual composition or effectiveness of the product.
Comments: The Fair Trading Act 1986 is broad consumer legislation that protects
consumers in relation to advertisements, among other things, over and above
the Advertising Standards Authority Codes. Care should be taken when
preparing advertisements to ensure that the Fair Trading Act is complied
with at all times.

PARAGUAY
Carlos Cazaña
BERKEMEYER Attorneys and Counselors
carlos.cazana@berke.com.py
www.berke.com.py
Case Report TV commercials; Posters; Banners; Radio advertisements
Topic: “You like football, you like PILSEN”
Where: Advertising Self-Regulation Council of CERNECO (CONAR); Board of
Directors of CERNECO
When: July 15 th , 2004
What Happened: In Paraguay, conflicts related to advertising, marketing and promotions have
been very scarce lately, and most of them have been related to Law 1333/98
“WHICH REGULATED MARKETING AND ADVERTISING OF TOBACCO
AND ALCOHOLIC BEVERAGES”. Article 8 of this Law says: “It is strictly
prohibited publicity of tobacco and alcoholic beverages that: a) uses figures of minors, as
well as characters or people that are representative for children or teenagers; (...) c) that
is related to sport or athletic activities that require good physical condition, or that may
be related to practice of said activities on any way. Excluded from this prohibition are
ads of motor sport activities such as car racing, motorbikes, boats, where trademarks of
products just appear”.
The most recent claim that CONAR analyzed, was filed on July 15 th , 2004, by
the National Union Against Alcohol Consume of Youth (CONACOL), based on
a marketing campaign initiated by the main Paraguayan beer company.
As a significant element of said campaign, a phrase was launched that stated
“You like soccer, you like PILSEN (beer brand)”. TV and radio spots, newspaper
ads, banners and posters were issued around this concept.
This marketing campaign appeared by the first months of 2004, when South-
American soccer play-off games for the World Soccer Championship in
Germany 2006 started.
At Decision N° 01/05 dated January 17 th , 2005, CONAR declared that the use of
said phrase and the materials that were part of the campaign meant a breach to
mentioned article 8 of Law 1333/98. Therefore, they should be modified or
eliminated.
Unlike most previous cases where CONAR’s decisions were accepted by both
parties (CONAR’s decisions are not enforceable legally for they are the award
of a private tribunal), the defendant decided to appeal Decision N° 01/05. It
was the first time a CONAR decision was appealed, though this defence is
regulated at the Code of Self-Regulation of CERNECO.
According to said Code, an appeal must be decided by the Board of Directors
of CERNECO. Therefore, on February 15th , 2005, the Board of Directors of
CERNECO analyzed the case and most of their members voted in favour of
confirming Decision N° 01/05 of CONAR.
Comments: This decision of the Board of Directors of CERNECO is very important not only
because of its novelty, but also because it proves that advertising selfregulation
and the institutions that impose it in Paraguay work effectively.

PERU
José Barreda
Barreda Moller
mail@barredamoller.com
www.barreda.com.pe
1. Topic New precedent of mandatory compliance differentiating labelling
information and advertising on packages
Who: Competition Chamber of the Administrative Court
What Happened: In resolving an infringement action filed before the Commission for
Consumer Protection, against a supermarket and a manufacturer of
margarine for use of the phrases “100 % vegetable” and “0% cholesterol”
included in the package of a margarine product, the Competition Chamber of
the Administrative Court has set forth a precedent of mandatory compliance
seeking to clarify the notions of labelling and advertising on packages,
expressing the following:
- The element which distinguishes advertisements from other forms of
communication which do not constitute advertising, is the finality to
promote the purchase of the advertised product, via the exaltation of an
advantage of such product.
- Advertisements on packages, due to its advertising nature, share the
finality of all advertisements, that is, promoting the purchase of the
advertised product. This means that all wording destined to promote the
purchase of the product being advertised, which is included in the package,
constitutes, due to its nature, advertisement, subject to the Norms of
Advertisement in Defense of Consumers.
- The promotion of the purchase of the advertised product may take
place by highlighting an element which composes the product, which the
advertiser considers might be perceived as advantageous by the consumer.
This eliminates the neutrality or mere descriptiveness of the highlighted
element, converting it in package advertising.
- Labelling of goods, governed by the laws of consumer protection, is
conformed by all information relating to a product, which is printed or
adhered to the package, including inserts, and which is expressed in neutral
and merely descriptive terms, without valuations or appreciations regarding
the characteristics or benefits that the situation being informed provides to
the product, that is, with no finality to promote directly, or indirectly, the
purchase of the product.
- Labelling of a product may be mandatory or optional. Mandatory
labelling makes reference to technical rulings, given that only these are
compulsory to providers of goods. Optional labelling makes reference to
suggested standards of quality, basically to technical norms, and refers, also,
to expressions. Both types of labelling – compulsory and optional - share the
same nature and consequently are subject to the law of consumer protection.
- The Commission for Consumer Protection is competent to resolve on
labelling matters, while the Commission for Repression of Unfair

Competition is competent to resolve on issues associated with advertisement
in package.
2. Topic Use of unsolicited commercial e-mail (SPAM)
Who: Peruvian Congress
What Happened: The Peruvian Congress has regulated for the first time the use of unsolicited
commercial e-mail (SPAM) in law 28493 which defines the meaning of
commercial e-mail, establishes in which cases unsolicited commercial e-mail
will be considered illegal, determines who will be considered responsible of
such conduct, and sanctions those found to be responsible.
The following are the most important aspects dealt with by law No. 28493:
1. E-mail is defined as every message, archive data or other electronic
information which is transmitted to one or more persons via a
network of interconnection between computers or any other
equipment of similar technology. Information contained in the form
of remission or annex accessible via direct electronic link contained
within the e-mail is also considered an electronic mail.
Commercial electronic mail is every electronic mail which contains
commercial advertising information or promotional information
promoting goods and services of one company, organization, person
or any other with lucrative purposes.
2. It is the right of the user to reject or not the receipt of the commercial
electronic mail. It is also the user’s right to revoke the authorization
for receipt, except where such authorization is an essential condition
for the provision of electronic mail service. It is the user’s right that
his service provider of electronic mail has available systems or
programs that may screen unsolicited electronic mail.
3. Providers of electronic mail domiciled in this country are obliged to
have systems or programs for blocking and/or screening the
reception or transmission made via their server, of electronic mail not
be requested by the user.
4. All commercial electronic mail, promotional or advertising, which is
not solicited and which is generated in this country, must contain:
- The word ADVERTISEMENT under the “subject” of the
message.
- Name or corporate name, complete domicile and e-mail
address of the person or company sending the mail.
- A valid and active electronic mail address for response, that
should allow receiver to send a mail to notify his desire not to
receive more unsolicited mails or the inclusion of other
internet based mechanisms allowing receiver to express his
decision not to receive additional mails.
5. Unsolicited electronic mail will be considered illegal in the following
scenarios:
- When it does not comply with the requisites indicated under
#4. above.

- When it contains a false name or false information oriented
not to identify the person or company transmitting the
message.
- When it contains false or deceitful information under
“subject”, which does not coincide with the contents of the
message.
- When it is sent or transmitted to a receiver who has requested
that such advertisement not be sent to his e-mail address,
after a term of two days counted from the day the request is
made by receiver.
6. The following persons/companies will be considered responsible of
the illegal conduct under #5. above:
- Every person who sends electronic mails which are
unsolicited, containing commercial advertising.
- Companies or persons which are directly benefited with the
advertisements.
- The intermediaries of unsolicited electronic mails, such as
service providers of electronic mail.
7. The receiver of the illegal electronic mail may initiate a judicial
proceeding in order to obtain compensation, which shall amount to
1% of the tax unit for each of the messages transmitted in
contravention of this law, with a maximum of 2 tax units (each tax
unit amounts to approximately US $1,012.60).
8. Indecopi – National Institute for Defense of Competition and
Protection of Intellectual Property, namely the Commission for
Consumer Protection and the Commission for Repression of Unfair
Competition, is the competent authority to resolve on infringement
conduct against law 28493.
Law 28493 will come into effect 90 days after its date of publication, 12
April 2005.
3. Topic Principle of fairness in advertising
Who: Peruvian cola company
What Happened: A Peruvian company, manufacturer of one of the leading colas (beverages) in
the Peruvian territory, filed an infringement action against a manufacturer of
another cola, of same color, based on the alleged infringement of the
principle of fairness in advertisement, regulated in Article 7 of Legislative
Degree 691.1
The advertisement subject to infringement action takes place in a minimarket
while two delivery men of cola A (product of claimant) and cola B
1 Article 7, Legislative Degree 691 “Every advertisement must respect free and fair mercantile competition.
Advertisements must not imitate the general scheme, the text, the slogan, the visual presentation, the music or sound effects of
other advertising messages, national or foreign, when the imitation may produce error or confusion.
Advertisements must not denigrate any company, trademark, product or ad, directly or by implication, by disdain, ridicule or
any other means.

(product of defendant), place their respective products in a shelf, while a
voice in off says:
- “Some colas offer quality” (the image of a bottle of product A is
shown).
- “Others offer best price” (the image of another product is shown).
- “Some offer quality, others low price” (image of the two delivery men
fighting).
- “Quality, low price, quality, low price” (image of the bottle showing
product A and the bottle of another product).
- “Do not fight! If you want quality at the best price, drink B” (product
of defendant) (image showing a bottle of product B).
- “The beverage with the flavor liked by all” (image showing a man and
a woman, drinking product B).
- “B, a hundred percent Peruvian”.
- “Drink B, quality with the best price” (image showing three
presentations of product B).
Claimant alleged that the advertisement was likely to produce confusion
with respect to the entrepreneurial source of defendant’s product, provided
that the bottles shared a same design, both bottles contained a yellow color
liquid, and the labels identifying both products had equal color.
Claimant alleged, also, that defendant was taking advantage of claimant’s
commercial reputation in the market, leading consumers to believe that
product B was being commercialized by claimant’s company. Claimant
alleged that the trademark identifying product B reproduced the name of the
founder of a company related to his.
The Commission for Repression of Unfair Competition resolved the claim of
confusion reiterating what had been resolved by the Trademark Office in an
infringement action filed by claimant against defendant, in the sense that the
mark used by defendant was not likely to produce consumer confusion as
concerning the entrepreneurial source of defendant’s products. According to
the Commission, the ads presented products A and B in a context of
confrontation, reason why a reasonable consumer should conduct an integral
(and superficial) analysis of the products, not being led to confusion.
Resolving on the allegation of undue exploitation of claimant’s commercial
reputation, the Commission indicated that in cases of undue exploitation of
others’ reputation, the infringer seeks to establish a relation between him and
his competitors, with the purpose of taking advantage of the prestige or
reputation obtained by such other competitors in the market.
The Commission found that in the case under analysis, it had been
determined that the defendant had not generated a risk of confusion by
presenting product B in the ad, and that it is reasonable to conclude that the
defendant’s ad did not purport to take advantage of the prestige of the
claimant in the market, but on the contrary, sought to confront his and
claimant’s products.
The Commission dismissed the infringement action.

POLAND
Ewa Skrzydło-Tefelska
SKS Legal Advisors
ewa.tefelska@skslegal.pl
www.skslegal.pl
1. Issue: Misleading advertising – concept of an average purchaser
The Parties: „Bear-Lock” („Bear-Lock”) case – ref. no. I CK 358/02
Where: Polish Supreme Court
When: 3rd December 2003
The facts of the
case & the
settlement::
Plaintiffs – partners of the „Bear-Lock” civil partnership, executed with the
defendant, a car dealer, an agreement concerning the common marketing
action “Together We Care For Your Car”. Several business entities connected
with the automobile industry took part in the promotion. Within this
framework, the plaintiffs issued a videotape comprised of infomercial films
presenting products manufactured by the entities participating in the
promotion, including an advertisement presenting locks produced by the
plaintiffs.
During the promotion, the plaintiffs filed a claim with the court demanding,
pursuant to Article 16, Section 1, Item 2 of Law on Combating Unfair
Competition, the cessation of the distribution of the videotape. The plaintiffs
argued in the lawsuit that the advertising distributed during the promotion
is misleading consumers since it’s suggesting that the defendant installs in
the cars distributed by him only locks produced by the plaintiffs while the
offer of the defendant includes products of various manufacturers, some of
them were not even listed in the advertising materials.
Neither the court of first instance nor the court of appeals upheld the claim
raised by the plaintiffs. Thus, the plaintiffs filed an extraordinary appeal
(cassation) to the Supreme Court which ruled that there was no misleading
advertising in the case since an average consumer would not, based on the
advertising, be convinced that the defendant offers for sale only products of
the plaintiffs. Furthermore, the court ruled that for the proper analysis of the
factual background, a model of “an average purchaser” should be applied,
i.e. a purchaser properly informed, careful and diligent, and thus able to
verify individually the content of advertising messages. The court indicated
that an adoption of such a concept of the average consumer was necessary
and related to the characteristics of advertised products - cars and cars’
equipment. A car is an expensive product, not a good of common use, and is
purchased rarely. Therefore, a purchaser carefully analyzes different aspects
of the contemplated transaction, including those contained in advertising
messages. In conclusion, the Supreme Court upheld the judgment of the
court of appeals.
Comments: The discussed judgment, one of the few judgments issued in relation to this
problem in Poland, adopts a model of an average purchaser stemming from
the European case law (see case Gut Springenheide). The Supreme Court
correctly finds, that the characteristics of a purchaser should be dependant
on the kind of advertised products.

2. Issue: Misleading advertising
The Parties: Polska Izba Finansowa „Skarbiec” Sp. z o.o. v. the Chairman of the Office for
Competition and Consumer Protection (OCCP)
Where: The Court for the Competition and Consumer Protection
When: 23rd June 2004
The facts of the
case & the
settlement::
The limited liability company Polska Izba Finansowa „Skarbiec” diffused a
press advertisement, offering consumers credit or cash loans on preferential
terms.
As a result of a complaint, proceedings were initiated in the Office for
Competition and Consumer Protection (OCCP). The Chairman of the OCCP
rendered a decision stating that the abovementioned activity constituted a
practice infringing collective interests of consumers within the meaning of
Article 23a, Section 1, Act 15 of the December 2000 – Law on Competition
and Consumer Protection (text consolidated in Journal of Laws of 2003, No
86, Item 804). The decision prohibited further release of advertisements of
this kind.
In the justification of the decision the Chairman of the Office declared that
the company P.I.F „Skarbiec” did not conduct an activity consisting in
granting of credits. The services offered by the company consisted in
participation in capital consortium having a self-financing character,
gathering funds from periodical payments of the participants. Thus, the
Chairman of the OCCP stated, that the company’s advertisement was
misleading within the meaning of the Law on Combating Unfair
Competition. The second condition, i.e. infringement of collective consumer
interests, was also fulfilled.
The company P.I.F „Skarbiec” appealed the decision to the Court of the
Competition and Consumer Protection. In the appeal the company raised,
that the advertisement did not suggest, that the company offered granting of
the credits. The advertisement was only informing about the company’s
assistance offered to the clients in obtaining bank credits. The Court found
the appeal groundless and upheld the challenged decision. The Court
assumed that it was clear from the advertisement, that the company P.I.F
„Skarbiec” grants credits. Moreover, it results from the advertisement that
the credits were granted on preferential terms and according to a simplified
procedure. Finally, the Court ruled, that pursuant to Article 5 of Banking
Law, granting credits, with the exception of consumer credits, should be
exclusively performed by business entities operating as banks. The Act lays
down the principle that banks shall operate exclusively as State-owned
banks, cooperatives or joint-stock companies. The company P.I.F „Skarbiec”
operates as a limited liability company and even its object of activity does not
cover granting of credits. It therefore constituted yet another ground for
considering the advertisement as unlawful, which could induce a false
assumption that the company had a financial standing equal to banks and
that the consequences of entering into an agreement with the company
would be equal to those of entering into agreements with banks.
Comments: The advertisement diffused by the company P.I.F „Skarbiec” constitutes a
classic example of business activities operating within the so-called
“Argentinean system”. Advertisements of such entities are - as a matter of
principle – misleading, since they suggest a relation to a banking institution
granting credits on usual terms. Pursuant to binding provisions of the Polish
law, the conduct of operations within the Argentinean system is prohibited.

3. Issue: Advertising of medicines
The Parties: MEDAGRO INT. – ref. no GIF-P-R-481-4/RS/05
Where: The Main Pharmaceutical Inspector
When: 13th January 2005
The facts of the
case & the
settlement::
The company MEDAGRO INT. ran a TV advertisement of its product - pills
curing sore throat sold under the name TANTUM VERDE. The
advertisement contained inter alia the statement: “There are many kinds of
sore throat medicines, some of them remove the pain, others fight bacteria,
yet another cure only the inflammation. The green TANTUM VERDE pills
work comprehensively, removing the pain, bacteria and additionally fight
the inflammation”.
The Main Pharmaceutical Inspector issued a decision prohibiting further
diffusion of the advertisement. In the justification thereof, it was stated that
the advertisement infringed a ban established in the provision of Article 55
Section 2 of the Pharmaceutical Law. The said provision states that an
advertisement addressed to the public, cannot contain messages which
assure that taking a medicine will guarantee a desired effect, (…) or that the
effect will be better or equal to those of another cure or method of treatment.
The Main Pharmaceutical Inspector was of the opinion, that the
advertisement clearly assumed the superiority of the TANTUM VERDE pills
treatment over other medicines and methods of treatment.
Comments: The abovementioned decision is an interesting example of the application of
the provisions of the Pharmaceutical Law to advertising of medicinal
products. It should be noticed, that the provision was applied in the manner
restricting the requirements concerning use of comparative advertising. It
stems from the applied provision, that any advertisement asserting greater
effectiveness of one medicine over another is prohibited. Moreover, the
decision prohibits block comparisons, which as a rule fall outside a general
category of comparative advertising, within the meaning of provisions on
combating unfair competition.

PORTUGAL
César Bessa Monteiro
Abreu, Cardigos Associados
cesar.b.monteiro@abreucardigos.com
www.abreucardigos.com
1. Legislation
Rules
Topic: Local Authorities (Municipalities) Public Advertising
Who: Government
When: December 4 th
Where: Portugal
What Happened: The Government issued a Decree-Law (n.º 224/2004) determining that
informational periodic publications edited by Local authorities
(Municipalities) cannot contain advertising except if such advertising is
related to a municipal company – of exclusively or the majority public
equity. The Advertising Code was amended accordingly.
Comments: This Decree-Law intends to put an end to situations such as those where the
abovementioned publications have served as a means to commercial
advertising, when they are intended for public service, because they are
edited by entities that receive amounts from the State National Budget.
2. Self-Regulation
Case Report
Topic: Misleading Advertising – Proof of Statements
Who: The Jury of the Civil Institute of Self Regulation in Advertising (ICAP)
When: December 2004
Where: Portugal
What Happened: A margarine selling company advertised one of its products with the
following claims: “LOW-COL” and “0% Cholesterol”. A contestant alleged
that these messages were deceiving to the consumer, since according to the
“Codex Alimentarius” in order to use such sentences it would be necessary
that the product had less than 0,005 of cholesterol per 100g, that it does not
contain more than 1,5g of saturated fat per 100g and that these fat do not
contribute in more than 10% for the total energetic value of the product.
Contrarily the selling company stated that there was no legal definition of
“0% cholesterol” or of product “without cholesterol”, that the “Codex
Alimentarius” does not have a higher value than the Code of Practice of
Nutrition Claims of IMACE which is specifically aimed at margarines and
that the criteria of such Code, which are less than 5mg of cholesterol per 100g
of product, were met. For that purpose the selling company attached a
Technical Declaration from an independent company attesting this. However
this Declaration did not contain a full report on the testing. On a first
assessment, the Jury decided that this was not a valid element to prove the
statements made on the margarine and, as such, the common consumer
standard should be adopted in analyzing the correct use of such expressions.
In an appeal, the Appeal Committee of the Jury ruled otherwise and
considered the Declaration sufficient evidence to prove the veracity of the
claims used and as such, dismissed the case. Nevertheless, it added that in a
Judicial Court another decision could have been possible with grounds on
the invalidation of the Declaration.

Comments: This decision shows that one of the basic principles of advertising, which is
the veracity of the claims on the products advertised, must be taken into
account as the advertiser must, at all times, be capable of providing evidence
of the characteristics of the advertised product and that such proof should be
as accurate and independent as possible.
3. Self-Regulation
Case Report
Topic: Misleading Advertising – Complete Information
Who: The Jury of the Civil Institute of Self Regulation in Advertising (ICAP)
When: December 2004
Where: Portugal
What Happened: An Internet Service Provider company broadcasted an advertisement
in which it stated “now you may speed on everywhere for only 99
euros”, together with another sentence which appeared in small
print for about 2 seconds: “with automatic access to the more than
350 hotspots available”. This advertisement was considered by the
Jury as misleading due to the fact that in fact, this was not correct
information since the access to the hotspots everywhere was only
possible within a 60 metre range. Outside this perimeter it would be
necessary to pay an additional amount. The company defended its
position based on the fact that at the end of the advertisement there
was an indication to call a consumer phone line or to access a website
for further information. However, this argument was dismissed by
the Jury due to the fact that it considered that information on
essential characteristics of an advertisement should not be relegate to
such secondary means of information, especially when the
advertisement may be misleading to the consumer.
Comments: Once more the Jury has ruled on a case which it considered misleading due
to the fact that the price was presented in a partial manner. This price
element is the key factor in a consumer’s choice and, as such, it should be
presented clearly and without any omission or relegation to a secondary
means of information.
4. Self-Regulation
Case Report
Topic: Misleading Comparative Advertising
Who: The Jury of the Civil Institute of Self Regulation in Advertising (ICAP)
When: February 2005
Where: Portugal
What Happened: A telecommunications company advertised its services with the
following sentences: “Start surfing at half the price!”, “Save 59% in
economic schedule”, “Save 40% in normal schedule”, “the lowest
price in the market” with reference to the competitor companies.
With basis on the complaints of such competitor companies, the Jury
considered this to be misleading comparative advertising since the
advertisement did not identify the competitor’s specific products
with which they were being compared. Moreover, 59% and 40%
were not half of the price. In regards to the superlative sentence: “the
lowest price in the market” is a claim that must be susceptible of
proof which, in the present case, was not. Whilst the best in the
market may be accepted without proof because it is socially accepted
as an exaggeration, other claims such as the one at stake may be
considered as unfair competition.

Comments: This decision is another case which shows the importance of proof in
misleading advertising and clarifies the understanding of the Jury on the
boundaries of comparative advertising and the need to prove comparative
claims.
5. Self-Regulation
Case Report
Topic: Imitation
Who: ICAP
When: February 2005
Where: Portugal
What Happened: A toy selling company created the following advertising slogan for a
campaign: “If it exists, it is in [Our Store]”. This slogan was the object
of a complaint by a phone book selling company which had
broadcasted months before an advertisement with the following
slogan: “If there is one, it is in [Our List]”. It was considered a case of
imitation. Although they are not competing on the same market the
Jury considered as illicit the use of a slogan almost exactly the same
since it is contrary to the advertising ethics, independently of the
confusion that it might cause to consumers. The toy selling company
alleged that it was not a case of imitation since they imported the
advertisement from Spain and translated the words, where the
advertisement of the phone list company was not known. The Jury
decided that this was not enough to set aside the possibility of
imitation.
Comments: This case illustrates the possibility of the extent of the protection of an
advertising slogan, which can be protected under Portuguese Copyright and
Trademark Law.

ROMANIA
Florentina Dumitrescu
Wood Lupascu Dumitrescu & Associates SCPA
florentina.dumitrescu@wldlaw.ro
1. Topic: Elite
When: January 2005
What Happened: The National Audiovisual Council (“NAC”) requested the TV stations to stop
broadcasting the spots included in the “Bucuria de a trai” (Joy of living)
promotion of the coffee producer Elite Romania SRL. The NAC considered
that the campaign represented a form of misleading advertising.
The decision of the NAC came after a complaint by Nestlé Romania, one of
Elite’s competitors. In a letter sent to the NAC, Nestlé alleged that the Elite
spots represented misleading advertising because they caused the public to
believe that a USD 40,000 house could be won when, in fact, the actual
promotion offered as a prize a cash amount of USD 40,000, not a house. “The
spot presents images of a building surrounded by a plot of land. Regarding
the commercial, Nestlé argued that the voice-over said, “Win a USD 40,000
house.” Further, regarding the promotion regulation, it stated, “Two prizes
of USD 40,000 net each, representing the estimated value of a house, payable
in ROL at the foreign currency exchange rate of the respective day.”
Elite Romania replied that “the broadcasting of the TV spot for
popularization of the promotion may not be deemed as misleading
advertising, since the participants had sufficient elements to correctly
identity the offered prizes, i.e. the Regulation [published in the press], the
other written materials were made available to the public at the points of sale
or the telephone line dedicated to such promotion.”
The documents invoked by Elite had indeed been published in the written
press, but the TV commercials did not clearly explain the mechanism. This
was the primary basis of the NAC’s decision.
Prior to making its decision, the NAC requested the opinion of the Romanian
Advertising Council (“RAC”), which deemed that the “TV spots are in
breach of the Advertising Practice Code, drafted by the RAC, by the fact that
the allegations included in the spots and the promotion marks promise the
winners two USD 40,000 houses, while, in fact, they receive USD 40,000.”
The RAC recommended that the allegations in the spots and in the
promotion regulation be rendered consistent. The NAC weighed the
positions of the two competing companies, taking into consideration the
RAC recommendation, and requested that the Elite campaign be stopped.
The NAC invoked two articles of the Decision regarding advertising,
sponsorship and teleshopping and the Advertising Law.
Comments: According to Law No. 148/2000 regarding advertising (“Advertising Law”),
Art. 4, b), misleading advertising means any advertising which, by any
means, including the presentation, misleads or may mislead any person to
whom it is addressed or which comes into contact with it and may affect its
economic behavior, harming its interest as a consumer or which may harm
the interests of a competitor. The Advertising Law, Art. 6, a) prohibits

misleading advertising.
Both in this case of misleading advertising and in the case presented below
regarding comparative advertising in the Altex spot, the NAC sought the
opinion of the self-regulatory body in the field of Romanian advertising prior
to making a decision. Thus, the NAC understood to observe the provisions of
the cooperation protocol concluded between the two institutions in 2003,
establishing a practice of prior consultation with the RAC, a body which
promotes the interests of the Romanian advertising industry.
2. Topic: Altex Parodies Flanco
When: March 1, 2005
What Happened: The NAC decided that Altex had parodied Flanco because an Altex spot
presented a television set in a washing machine and blue wall tiles, which
elements were also present in a Flanco spot.
Leo Burnett advertising agency produced a spot called “Gemenii” (The Twins)
for Altex. The spot presented two boys home alone who surprise their father
with a prank when he comes home from work. The pranks are a scrabble
game using the letters of a destroyed keyboard and putting a television set in
the washing machine because “they saw it on television.”
Flanco argued that the “Gemenii” spot was a parody of one of their spots
included in the “Foarte deschis” (Very Open) campaign, which promoted a
“washing machine incorporating a television set.”
Altex vehemently denied this, stating: “We consider Flanco’s claim that
certain colors in the “Gemenii” spot, for instance the peg and the bathroom
wall tiles, would harm their image, is exaggerated. This would mean that
nobody would be allowed to use yellow and blue in their spots.”
The “Gemenii” spot is part of a campaign to promote double credit, granted
only based upon the identity card, and a continuation of the campaign
initiated in October last year. Upon the initiation of the campaign, the limit of
the credit granted based upon the identity card was limited to ROL 20
million (approximately USD 700). In February this year, the limit doubled.
This is what that the “Gemenii” campaign intended to promote.
Ruxandra Voda, Communication and Public Relations Manager of Altex
explained the “Gemenii” spot: “The spot starts from the idea that double
needs require double solutions. In this campaign, we resorted to a pair of
twins doing pranks specific to their age.”
On February 21, 2005, Flanco sent a letter to the NAC complaining that the
Altex spot parodied their spot. Alin Meraru, PR Officer of Flanco, asserted
that “this spot represents a breach of the current regulations, being a form of
promotion of certain products or services addressed to the public that it
instigates to waive other similar or resembling products or services.”
After receiving this letter, the NAC turned to the RAC. The RAC’s answer
was very categorical in stating that the spot was not in breach of the
provisions of the Advertising Practice Code, drafted by RAC. The NAC
ignored this conclusion and prohibited the broadcasting of the spot.
Comments: In Art. 4, the Advertising Law defines comparative advertising as any
advertising which explicitly or implicitly identifies a competitor or the goods

or services offered by it.
According to the Advertising Law Art. 8, e, comparative advertising is
prohibited if the trademarks, commercial denominations, other distinctive
marks, goods, services, activities, or circumstances of a competitor are
discredited or denigrated.
Although the RAC – the NAC’s consultant on advertising issues – deemed
that the “Gemenii” spot did not breach the Advertising Practice Code, the
NAC prohibited the broadcasting of the spot, taking an exaggerated measure
in view of international advertising market standards.
In Romania, advertising is relatively immature and, thus, competitors use it
as a battlefield. There have been several spots of this kind, such as: (1) truck
drivers exchange bottles with one another and one of them falls in love with
the competitor’s products to the extent that he cannot let them go; (2) a child
uses the juice cans of one of the producers only to reach the cans of the other;
and (3) other variations in which the products are explicitly showed and the
attack is direct.
In Romania, the NAC prohibits such spots. The effects of such prohibitions
on the business of the competitors are important. By prohibiting television
stations from broadcasting a spot, the NAC also influences the market of
media agencies and the promotional budgets of the companies. In this case,
Altex had to modify its media campaign. Flanco, in turn, intensified the
promotion of its “Foarte deschis” campaign
This prohibition policy does not, however, affect TV stations since media
space is crowded and overbid.
3. Topic: Lacalut Toothpaste
When: March 29, 2005
What Happened: In its public session of March 29, 2005, the NAC analyzed the spot for
“Lacalut” toothpaste. It decided that such spot breached the provisions of
NAC Decision No. 254/2004 regarding advertising, sponsorship and
teleshopping (“Decision No. 254/2004”). Therefore, the NAC requested
“PRIMA TV” station to stop broadcasting such advertising spot immediately.
Comments: According to NAC Decision No. 254/2004, Art. 41, para. (2), “the
broadcasting of advertising and teleshopping featuring doctors, dentists,
pharmacists or nurses who recommend or approve medicinal products,
medical treatments, vitamins, food supplements, nutrients, nutritive
supplements or fast moving consumer goods is prohibited.”
4. Topic: Medical Services
When: January 2005
What Happened: From January 4 to 11, 2005, “OTV” TV station broadcast advertising clips for
“Munposan” private hospital. On January 10 and 11, 2005, advertising spots
for ERA (Dentera) clinic were broadcast on “Antena 1” TV station. The NAC
decided that the two advertising spots breached the provisions of Decision
No. 254/2004, Art. 55, para. (1). The NAC issued Decisions No. 12/2005 and
No. 13/2005, requesting the TV stations to stop broadcasting the spots.
Comments: According to Decision No. 254/2004, Art. 55, para. (1), any advertising for
State-owned or private clinics providing public services is prohibited.

5. Topic: Advertising Covers
When: March 2005
What Happened: Between March 25 and March 28, 2005, “Antena 1” TV station broadcast
groups of spots at the beginning of which shots from an advertising spot for
Kandia chocolate were inserted, without clearly indicating through neutral
advertising its separation from other parts of the programs. The NAC
deemed that the provisions of Decision No. 254/2004, Art. 12, para. (1) had
been breached and issued Decision No. 233/2005 requiring the TV station to
comply with the law.
The NAC later determined that “Antena 1” had continued to broadcast the
advertising spots after having received the public summons, breaching the
same legal provisions for which it had been punished. The NAC issued
Decision No. 240/2005 whereby it imposed on the station a ROL 25,000,000
(approximately USD 900) fine for the breach of Decision No. 254/2004, Art.
12, para. (1).
Comments: According to Decision No. 254/2004, Art. 12, para. (1), advertising spots have
to be clearly separated by neutral advertising from the audiovisual
programs.
6. Topic: Contest show
When: February 2005
What Happened: In a contest show broadcast on February 21, 2005 on “TVR 1” TV station, the
public was not provided with clear information regarding the tariffs charged
by telephone services suppliers, i.e., the price displayed did not include VAT
and the fonts of the tariffs displayed were smaller than those used for the
telephone and SMS numbers. Also, the station did not inform the public of
the fact that children under 16 years of age may not participate in the contest.
The NAC established that the legal provisions regulating the conditions to be
fulfilled upon broadcasting such shows were breached. The NAC issued
Decision No. 171/2005 summoning TVR 1 to immediately comply with such
legal provisions.
Comments: According to Decision No. 254/2004, Art. 8, the communication of the
telephone numbers of the telephone services within a show/program in order
to invite the public to participate in a prize contest or televoting, or to express
their opinion, must observe the following requirements:
a) provide the public with clear information regarding the tariffs
charged by the telephone services suppliers ;
b) correctly inform the public with regard to the conditions and modality
to take possession of the offered prize, including the potential costs.
According to Art. 8, para. (2), within the framework of television programs,
the tariff charged by the telephone services supplier must be presented in a
legible manner by displaying it in the same font characters and size as the
telephone number.
7. Topic: Advertising and Tobacco and Tobacco Products
When: November 2004
Legislation: Law No. 457/2004 regarding advertising and sponsorship for tobacco
products (“Law No. 457/2004”)
What Happened: On November 1, 2004, the Romanian Parliament adopted Law No. 457/2004,

following the legislative initiative of the Ministry of Health of March 2004.
This law includes certain differences from the initial draft.
Law No. 457/2004, Art. 3, para. (1), prohibits advertising of tobacco
products:
a) in the written press and in other printed publications, except for the
announcements expressly provided by law;
b) broadcast by the public or private radio and television stations;
c) in cinemas;
d) on advertising panels, covers or display structures for which a
commercial and advertising display tax is due, provided by the Fiscal Code;
e) by IT services;
f) by using the tobacco trademarks on products or services which are
not related to the tobacco products;
g) by the sale of sweets or toys destined to children and manufactured
with the obvious intention of giving the product and/or its package a look
similar to a tobacco product.
According to Law No. 457/2004, Art. 3, para. (2), advertising of tobacco
products is permitted only in publications exclusively destined to
professionals of the tobacco industry and in publications which are not
edited or printed in Romania or in a EU member state and are not primarily
destined to the Romanian or EU market.
Also, advertising of tobacco products by IT services is permitted under the
conditions provided under para. (2).
According to Law No. 457/2004, Art. 4, para. (1), sponsorship related to
tobacco products of events or activities which have cross-border effects or
which involve or take place in at least two EU member states, or of which
one is Romania, is prohibited. Also, according to Law No. 457/2004, Art. 4,
para. (2), the free distribution of tobacco products while sponsoring the
events provided under para. (1), having as their purpose or direct or indirect
effect the promotion of tobacco products is prohibited.
According to Law No. 457/2004, Art. 5, para. (1), the failure to observe the
provisions of Art. 3, para. (1) and of Art. 4, para. (1) shall be construed as a
minor offence and shall be punished by a minor offence-related fine of
between ROL 25,000,000 (approximately USD 900) and ROL 500,000,000
(approximately USD 18,000).
The failure to observe the provisions of Art. 4, para. (2) shall be deemed as a
minor offence and shall be punished as follows:
a) distribution companies shall be punished by a minor offence-related
fine of between ROL 50,000,000 (approximately USD 1,800) and ROL
100,000,000 (approximately USD 3,600);
b) offenders over eighteen (18) years of age shall be punished by a fine of

etween ROL 5,000,000 (approximately USD 200) and ROL 10,000,000
(approximately USD 400);
c) offenders under eighteen (18) years of age and pupils/students shall
be punished by a minor offence related-fine of between ROL 1,000,000
(approximately USD 40) and ROL 5,000,000 (approximately USD 200).
A second breach of Art. 4, para. (1) shall be sanctioned by a minor offencerelated
fine provided under para. (1) and by a temporary suspension of the
activity by the competent authorities.
Comments: The Law will come into force on December 31, 2006, although the date
proposed for enforcement in the initial draft was July 30, 2005.
The Law transposes Directive No. 2003/33/CE regarding the harmonization
of the legislative, regulatory or administrative provisions of the member
States with regard to advertising and sponsorship of tobacco products,
published in the Official Journal of the European Communities No. L152 of
June 20, 2003, and certain provisions of Recommendation No. 2003/54/CE,
regarding the prevention of smoking and the initiatives for improvement of
the control over tobacco, published in the Official Journal of the European
Communities No. L022 of January 25, 2003.

SOUTH AFRICA
Chris Job & Lindsey Kilmartin
Adams & Adams
ckj@adamsadams.co.za
www.adamsadams.co.za
1. Conformity with
legislation
Topic: Clause 4.1 and 4.2 of Appendix A of the Advertising Standards Authority
(“ASA Code”) Code of Advertising Practice (“conformity with legislation”)
Who: ASA Directorate of South Africa
When: April 2005
Where: South Africa
What Happened: Pfizer Laboratories lodged a complaint against a Thebe Pharmaceuticals
information brochure and product packaging for a product called Ceralyte
50.
The complainant was of the view that the medicinal claims were being made
in relation to the product which constituted food. The claimant advised that
products making medicinal claims should be registered with the Medicines
Control Council (MCC) in terms of the Medicines and Related Substances
Control Act 101 of 1965 (“Act 101 of 1965”). Since this product had not been
registered in terms of the Medicines Act, it was regarded as food, and
therefore did not comply with the requirements of the Foodstuffs, Cosmetics
and Disinfectants Act 54 of 1972.
The complainant further submitted that the claim on the packaging: “a unique
rice-based product, CeraLyte was found to best meet all criteria and is the result of
over 40 years of medical research worldwide” was misleading as it could be
interpreted by the consumer to mean that the product complied with the
stringent requirements for medicines.
The respondent advised that CeraLyte contained water, rice syrup and basic
electrolytes needed to protect the body against dehydration.
Furthermore, the electrolyte concentration of the product had been amended
and fell below the registerable limit as set out in Act 101 of 1965.
Ceralyte had also been submitted for registration as a complimentary
medicine in terms of the Act, and the respondent submitted a copy of the
application for registration.
The respondent agreed to remove certain claims complained of.
The Directorate received confirmation from the MCC that the application for
registration had been submitted, as well as confirmation from the
Department of Health that the product was not a foodstuff.
The Directorate came to the conclusion that, in light of the fact that, both the
MCC and Department of Health ex facie agreed that the product was not a
food, but rather a medicine, that it was in fact a medicine, and had applied
for registration as such.

The respondent had attempted to comply with the relevant regulations, and
is therefore not in breach of clauses 4.1 and 4.2 of Appendix A in so far as
they related to the complaint before the Directorate.
Comments: The Directorate also accepted the respondent’s undertaking to remove
certain claims on condition that the claims were withdrawn with immediate
effect and not used again in the future.
2. Misleading
Advertising
Topic: Section I , Clause 1.3 (“fair competition”), Section II Clauses 2, 4.1, 4.2.1 and 6
of the Advertising Standards Authority (ASA)’s Code of Advertising Practice
(“honesty”, “substantiation”, “misleading claims” and “disparagement”)
Who: ASA Directorate of South Africa
When: April 2005
Where: South Africa
What Happened: HSBC lodged a competitor complaint against a BoE Clients print
advertisement published in the Business Report dated 23 February 2005.
The advertisement was headlined: “Dear HSBC Client/Commodity” and read
“So you’ve been sold off to the highest bidder? Perhaps it’s time to consider your
options. With 18.5 billion under management, BoE Private Clients is the largest
private asset management company in South Africa, offering you: top quartile
investment performance, a Swiss model personalized home office banking service,
financial structuring, will preparation and advice, trust account, trust account
structuring and management, as well as tax structuring and consultation. So if
you’re looking for a true personalized service, give us a call.”
The complainant submitted that the respondent was in breach of the ASA’s
Code in that the advertisement was not an example of acting honestly and
fairly with due skill, care and diligence in the interests of clients and the
financial services industry. Furthermore, it complained that the advertising
was misleading in that it created an impression that the whole of HSBC’s
business operations in South Africa had been sold to a third party, as well as
being unclear from the advertisement as to which legal entity the public
would be dealing with should they have responded to the advertisement
placed by the respondent. The advertisement was damaging to HSBC’s
reputation and its clients.
The respondent advised that on the same day that the advertisement
appeared, it was withdrawn following discussions between the parties.
Despite having withdrawn the advertisement, the Business Day in KwaZulu-
Natal published the advertisement on 2 March 2005, the Business Day
furnished the respondent with a written apology which was submitted to the
ASA as part of the response. Furthermore, the respondent gave an
undertaking to never in the future use the material content of the
advertisement in question.
The Directorate considered the matter and accepted the respondent’s
undertaking on condition that it was withdrawn immediately and never
used again in future.
Comments: The Directorate came to the conclusion that since the ASA serves as a forum
to finalise disputes, it was unnecessary for the Directorate to consider
whether the Code had been breached, as the matter was finalised by means
of an undertaking from the respondent.

3. Misleading
Advertising
Topic: Advertising Standards Authority (ASA) Code of Advertising Practice:
Section II Clauses 4.2.1 and 19 (“misleading claims” and “pricing policy”)
and Appendix D, Clauses 3.1.7.1 and 5.1 (“obligations of mail order
advertisers” and “supply of services”)
Who: ASA Directorate
When: April 2005
Where: South Africa
What Happened: A consumer lodged a complaint against a Homemark television infomercial
promoting its Peel Away the Pounds weight loss product. The infomercial
described the various benefits of using the product and supplied details of
where it could be purchased.
The complainant submitted that the infomercial advertised a complete
system with supply for a month for R249.00, however upon calling the call
centre, the agent attempted to sell the complainant another product
apparently needed in order for the system to be most effective. In addition,
the infomercial, did not mention that a delivery charge of R60.00 was levied.
The respondent submitted that its infomercial clearly showed that all prices
quoted excluded post and packaging, and the amount charged varied from
customer to customer depending on their location.
The respondent submitted that the call centre agents do attempt to sell
further complementary products at special prices, but customers are not
obliged to purchase them. Furthermore, the respondent had refunded the
complainant the price of the product as well as the postage and packaging
costs.
The Directorate noted both parties’ submissions and the material submitted
and determined that the complaint relates to a service issue as the call centre
agent failed to clearly explain the status of the further product in relation to
the advertised product. This created an impression that the customer had to
buy the complementary product, which was not in fact the case.
The ASA can only rule on the content of advertising and does not have
jurisdiction over service related issues, and accordingly could not rule over
that aspect of the complaint.
The communication regarding the price comprised an on-screen message
and a voice-over, although the voice-over did not stipulate that the price did
not include post and packaging, the statement “R299 excl P&P” was
displayed on the screen each time the price was shown.
The abbreviation P&P is commonly used and is defined in the South African
Concise Oxford Dictionary as “postage and packaging”, therefore, the
hypothetical reasonable consumer would be aware that P&P refers to
postage and packaging.
The Directorate came to the conclusion that the infomercial did not
contravene any of the sections of the Code and the complaint was
accordingly dismissed.

4. Misleading
Claims
Topic: Advertising Standards Authority (ASA) Code of Advertising Practice:
Section II, Clauses 4.1 and 4.2.1 (“substantiation” and “misleading claims”)
Who: ASA Directorate
When: April 2004
Where: South Africa
What Happened: A consumer complaint was lodged against an Oxygen For Life radio
commercial for Cellfood, flighted on Radio 702. The infomercial stated that
“the air we breathe contains less oxygen” and “Cellfood is an advanced
nutritional formula that supplies our bodies with oxygen and essential
ingredients…”.
The complainant submitted that the claims are misleading as they are
scientifically impossible.
The respondent submitted that the radio commercial was no longer being
used and would not be used again in its current format.
The Directorate accepted the respondent’s submission as an undertaking to
withdraw the advertising.
5. Misleading
Claims
Topic: Advertising Standards Authority (ASA) Code of Advertising Practice:
Section II, Clause 4.2.1 (“misleading claims”) and Appendix E (“advertising
for slimming”)
Who: ASA Directorate
When: March 2005
Where: South Africa
What Happened: A consumer complaint was lodged against a Figure Focus print
advertisement for Hoodia Magic diet capsules which appeared in YOU
magazine. The advertisement contained the wording “The diet capsule the
whole world has been waiting for”.
The complainant submitted that the advertisement was misleading because it
made no mention of any necessary dietary plans.
The respondent submitted that it had no intention to mislead consumers, and
that it had amended the advertisement to include reference to a low calorie
diet.
The directorate noted the respondent’s submission and accepted it as an
undertaking to amend the advertisement on condition that the current
advertisement was withdrawn with immediate effect and not used again in
the future.
Comments: In accepting the respondent’s undertaking, the Directorate had to consider
whether the proposed amendment adequately addressed the complaint at
hand. The Directorate drew attention to Clause 2.3.1 of Appendix E which
states that diet aids, such as foods, food substitutes or appetite suppressants,
may not be advertised except in terms which make it clear that they can only
be effective when taken in conjunction with or as a part of a kilojoulecontrolled
diet.

In the amended advertisement the phrase referring to the low calorie diet
does not give due prominence, since it appears as a footnote. The
advertisement should be amended in a manner that addresses the
requirements of Clause 2.3.1 of Appendix E.
6. Misleading
Claims
Topic: Section lI, Clauses 3.3, 4.1 and 4.2.1 of the Advertising Standards Authority
Code of Advertising Practice (“ASA Code”) (“fear”, “substantiation” and
“misleading claims”
Who: ASA Directorate
When: March 2005
Where: South Africa
What Happened: A consumer complaint was lodged against a Pfizer television commercial. It
featured a man explaining how the “…pressures of modern living…” took its
toll on his “…physical performance as a man” and his “…relationship at
home…”. His doctor and pharmacist referred him “…to the website
feelalive.co.za”.
During this explanation, footage was shown of a man having arguments with
his wife, visiting his doctor and then pharmacist, and then enjoying playful
and romantic moments with his wife.
The complainant submitted that the commercial worked on a basis of fear
and created the impression that the drug Viagra would improve libido,
sexual satisfaction and overall sexual health. The claimants submits that this
is false, since Viagra only removes one type of erectile malfunction, and has
not been shown to have any effect on libido and general sexual health.
The respondent submitted that there was no mention of Viagra in the
commercial, and no reference to medication or product was mentioned.
Furthermore, the respondent submitted that there was no statement or action
that incited fear, since the commercial was aimed at educating patients on
symptoms and increase awareness about erectile dysfunction.
The Directorate considered that the commercial communicated its message
in an autobiographical style which referred to a sexual dysfunction relating
to stress. The commercial did not mention Viagra or any other drug and
merely communicated that a doctor might be able to assist with certain
problems associated with stress and refers the consumer to a website where
more information could be found.
Accordingly, the Directorate found that there was nothing in the commercial
that required substantiation as no direct or implied claims were made in
respect of a particular product.
The commercial attempted to empathise with consumers experiencing
similar symptoms to that of the man in the commercial, and attempted to
supply a possible solution.
There were no frightening or threatening images in the commercial, and
therefore there was nothing to invoke any fear in the hypothetical reasonable
consumer watching the commercial. The complaint was accordingly
dismissed.

7. Offensive
Advertising
Topic: Section ll, Clause 3.5 of the Advertising Standards Authority Code of
Advertising Practice (“ASA Code”) (“gender”)
Who: ASA Directorate
When: March 2005
Where: South Africa
What Happened: A consumer complaint was lodged against an Elizabeth Arden television
commercial for its Provocative perfume product. The commercial featured
men melting into a puddle of water at the sight of a woman, presumably
wearing the advertised product.
The complainant submitted that the commercial was offensive, sexist and
demeaning since it implied that men are powerless to sexual provocation.
Furthermore, it was submitted that the advertisement promoted the idea that
it is okay for women to use sexual innuendo to gain favour, control or
acceptance, which is demeaning to women and insulting to men.
The respondent replied that the commercial had been flighted internationally
and that this was the first and only complaint against it, and that a
reasonable consumer was likely to perceive the commercial as over the top
and unrealistic as it is impossible for men to melt and become water as
suggested by the commercial.
The Directorate requested an opinion from the Commission on Gender
Equality (CGE), which submitted that the advertiser exploited the phrase
“men will melt” to promote sales of its product, the effect of which is to make
an excessively generalised statement that all men would react the same way
to a beautiful woman. The CGE concluded that the commercial gender
stereotyped men and women by perpetuating the notion of women as sex
objects and of men as slaves of sexual provocation.
The Directorate took into consideration the submissions made by both
parties, as well as the CGE’s opinion. Section 3.5 of Section II states that
gender stereotyping or negative gender portrayal should not be permitted in
advertising, unless in the opinion of the ASA, such stereotyping is justifiable
in an open and democratic society based on human dignity, equality and
freedom.
The Directorate was of the opinion that the commercial must be seen in the
context as a whole, and in the context and nature of the product. The product
was a perfume, worn by people to make them more appealing to others. The
concept of “men will melt” is well-known and was used in an acceptable
manner to tie up with the concept of the commercial and the name of the
product. There is nothing degrading about melting, it is merely a social
reality that people experience attraction towards each other.
The hypothetical reasonable consumer is likely to perceive the commercial as
unrealistic.
Therefore, the Directorate concluded that the commercial was not demeaning
and sexist to men and women and not in contravention of the Code. The
complaint was dismissed.

8. Offensive
Advertising
Topic: Section l, Clause 1.2 (“responsibility to the consumer”) Section II, Clauses 1
and 14, (‘offensive advertising” and “children”) of the Advertising Standards
Authority Code of Advertising Practice (“ASA Code”) (“misleading claims”,
“pricing policy” and “non-availability of advertised products”
Who: ASA Directorate
When: March 2005
Where: South Africa
What Happened: Consumer complaints were lodged against an SABC television commercial
for the Mark Gillman Show on 5FM. The commercial depicts members of a
brass band dressed in black leather bondage outfits bursting into a room
where a woman is sleeping, playing their instruments loudly. The pay-off
line is “Gillman”.
The complainant submitted that the commercial was offensive because it was
flighted at an inappropriate time when many young viewers would be
watching television, and depicted a kinky sexual approach and atmosphere.
The respondent replied that there was no sexual context created by the
subject matter of the advertisement, and the context of the band appearing in
a bedroom provided the commercial with its humorous value.
The Directorate considered Clause 1 of Section II in coming to its conclusion,
which states that “No advertising may offend against good taste or
decency… unless the advertising is reasonable and justifiable in an open and
democratic society…”.
The Directorate determined that complainants were offended because the
commercial was perceived to be in bad taste and overtly sexual.
Bad taste does not necessarily equate to an offence in terms of the Code, but
advertisements should not cause serious, widespread or sectoral offence.
The Directorate recognised that there was something uncomfortable about
the behaviour of the characters in the commercial. The message of the
commercial was that the radio show in question would disrupt your
morning comfort zone, and in this context, the discomfort was probably
intentional. Furthermore, the Directorate concluded that the commercial was
not overtly sexual in any way, and did not harm children. Therefore, the
complaints were dismissed.
9. Misleading
Claims
Topic: Section ll, Clause 4.2.1 of the Advertising Standards Authority Code of
Advertising Practice (“ASA Code”) (“misleading claims”)
Who: ASA Directorate
When: March 2005
Where: South Africa
What Happened: A consumer complaint was lodged against an Aucor South print
advertisement that appeared in the Cape Argus newspaper on 7 and 8
August 2004. The advertisement contained the wording “Aucor South will
submit the following to Public Auction Sale” and “All Samsung products
will be sold with warranties”.

The complainant was of the opinion that the commercial was misleading
because the Samsung products only had warranties for one month, whereas
the perception of a Samsung warranty would be the normal one or two year
period. Furthermore, the products being sold were “seconds” and were not
advertised as such, and nowhere on the advertisement did the word
“Voetstoets” appear.
The respondent submitted that nowhere in the advertisement was it
mentioned that the goods were new, and all terms and conditions were read
out at the beginning of the auction, as well as handed out to all buyers with
the catalogue. Furthermore, all sales were “voetstoets” and the complainant
was willing to buy on a public auction.
The question before the Directorate was whether the advertisement created
the impression that the goods sold would be new goods with normal
warranties.
The layout of the advertisement was clearly that of an auction house, and the
wording at the top of the advertisement indicated that the respondent was in
the business of selling repossessed goods.
Given that the advertisement was clearly from an auction with repossessed
assets, the advertisement as a whole created the impression that the
advertised products were not new.
Therefore, the Directorate concluded that a hypothetical reasonable
consumer would not believe that new goods were being advertised by an
auction house that specialised in repossessed goods, and would therefore not
expect a normal warranty. Based on this, the advertisement was found to not
be misleading, and did not create an impression that the advertised products
were new or have new product type guarantees.

SPAIN
Gerhard W. Volz
Schiller Abogados
gwvolz@schillerabogados.es
www.schillerabogados.es
1. Legislation: Self-regulation agreement
Topic: Advertising to Children
When: December 2004
Who: Government and TV channels
Where: Spain
What Happened: On December 9 th , 2004 the TV channels Radiotelevisión Española (Spanish
public TV) and the private TV channels Antena 3 Televisión, Gestevisión
Telecinco and Sogecable signed a new self-regulation code regarding TV
contents and children.
On the same date, these TV channels and the Spanish government signed an
agreement to improve self-regulation regarding TV contents and children.
Through this agreement the Spanish government recognises the usefulness of
the self-regulation code.
The self-regulation code and the governmental agreement are the
consequence of the breaking of the EU Directive TV without Frontiers and its
transposition into Spanish legislation.
The main news of the self-regulation code are the following:
- New especially protected time frames: from Monday to Friday between 8
and 9 a.m. and 5 and 8 p.m. it is prohibited to broadcast programs not
suitable for children under the age of 13. This prohibition is also applicable
to the time frame between 9 and 12 a.m. on Saturdays and Sundays and all
national holidays, such as, for example 1 st and 6 th January.
These two time frames have been set in order to distinguish between
children (minors under 13 years) and young people (minors under 18 years).
It is understood that during said time frames children are likely to be left
unattended by their parents.
The legal time frame for protection of children (between 6 a.m. and 10 p.m.)
still remains the same.
- Increase in the signalling of the TV programs in order to make it easier for
parents to control what their children watch on TV. Therefore, TV programs
are classified as follows:
a) Programs especially recommended for children under 7 years.
b) Programs for all audiences.
c) Programs not recommended for children under 7 years.
d) Programs not recommended for children under 13 years.
e) Programs not recommended for children under 18 years.
Criteria for the classification of TV programs are focused on two main issues:
social behaviour and controversial subjects. Furthermore specific criteria for
the treatment of violence and sex have been stated.

Comments: A new step has been taken to more efficiently protect children regarding TV
programs. Nevertheless, parents should continue to be responsible for their
child’s education.
2. Legislation: New Draft Bill of the Smoking Prevention Act
Topic: Tobacco
When: January 2005
Who: Spanish Government
Where: Spain
What Happened: At the start of this year, the proceedings started for the New Draft Bill of the
Smoking Prevention Act, drawn up by the Ministry of Health. It is turning
out to be very controversial due to the opposition shown from the Ministries
of Industry, Employment and Justice, among others.
With this new Act, the Ministry of Health aims to reduce the harmful effects
of tobacco. It believes that 16% of deaths in people over the age of 35 are due
to tobacco consumption.
Some of the main novelties of the Draft Bill are:
a. Minimum age for the purchase of tobacco
It is currently prohibited to sell tobacco to minors under the age of 16, either
directly or through vending machines. The Draft Bill increases the minimum
age to 18.
b. Places where tobacco cannot be sold
At present, tobacco cannot be sold in health establishments, schools and
those places allocated for children and young people. The new Act also
includes cultural and sports centres and any other place where smoking is
prohibited.
c. Prohibition of smoking at work
The current Act bans smoking in workplaces where there is the risk of
combining tobacco with certain industrial contaminants or where there are
pregnant women. The Draft Bill stipulates that in 2006 it will be prohibited to
smoke in any public or private workplace.
d. Prohibition of smoking in bars
There are currently only restrictions for theatres, cinemas and restaurants,
where the smoking areas must be suitably specified.
This new Act bans smoking in bars and restaurants larger than 100 m2,
unless a specific place, with separate ventilation, is adapted for this purpose.
e. Prohibition of advertising, promotion and sponsorship
At present, it is prohibited to advertise smoking on television (public and
private) and on public radio. The new Act aims to completely eliminate
tobacco advertising. The ban is also extended to the press and private radio.
It will also be prohibited to give products related to tobacco as promotional
gifts and perform sponsorship activities.
f. Sanctions
The infringements are classed as: minor with fines of 30 to 600 Euros, serious
with fines of 600 to 10,000 Euros (e.g. selling tobacco to minors) and very
serious with fines of 10,000 to 60,000 Euros (e.g. advertising, promotion and
sponsorship of tobacco products).

The criticisms made against the Draft Bill are against the total ban on tobacco
advertising, which is anti-constitutional as it prevents the freedom of the
company and is contrary to community law. It also criticizes the sanctions,
whereby selling a cigarette to a minor has greater sanctions than giving him
drugs. The lowest sanction for selling tobacco to a minor would be 600 Euros,
when if he is supplied 1 gram of cocaine, the sanction would be around 240
Euros.
Comments: Although it is possible that the definitive text of the new Anti-Smoking Act
may be somewhat softened, the Government’s firm intention is to drastically
reduce tobacco consumption and ban advertising.
3. Legislation: General Advertising Act
Topic: Unlawful, unfair and comparative advertising
When: October 2004
Who: Madrid Provincial Court
Where: Spain
What Happened: In our country report of May 2003, we informed on the judgement given by
the Court of First Instance No. 11 of Madrid, whereby it ordered the
company TELE 2 to stop the acts of unfair competition carried out by
broadcasting an advert in which it compared its rates to those of the
company Telefónica and to make an advert to rectify the previous one. In
doing this, they must follow certain indications also laid down in the
judgement.
However, on 26.10.2004, the Madrid Provincial Court revoked said
judgement.
After analysing the two reasons which led the Court of First Instance to
classify the prosecuted advert as illicit (a) not advertising similar products
and (b) untruthfulness as it is incomplete, regarding the first point, the Court
has understood that the objects of comparison do not have to be identical. It
is sufficient that the products and services belong to the same type and are
used to satisfy identical needs.
And with respect to the truthfulness of the advertising, the Madrid Court
indicates that the comparison made in the advertising message in question
does omit reference to certain circumstances (discount plans, service
packages, vouchers and price plans) which may, where appropriate, modify
the final price of the service provided. However, they are not essential data,
as they depend on the subscriber requesting them and certain requirements
being met. Furthermore, the different plans, packages and vouchers are not
unknown by the consumer, given the frequent, intense advertising
campaigns they are subject of.
In consequence, the Madrid Provincial Court has allowed the appeal brought
by the company TELE 2, proceeding to revoke the judgement passed by the
Court of First Instance no. 11 of Madrid.
Comments: The concepts of “similar products” and “untruthfulness” should be
understood in the strictest sense.

4. Legislation: Advertising Code of Conduct
Topic: Degrading advertising
When: February 2005
Who: Advertising self-Regulation Association
Where: Spain
What Happened: The Gillette España, S.L. Group filed a claim against an advert that the
company Unilever España, S.A. is responsible for.
In the advert, the voice-over says: “The skin under your arms is very delicate
and depilation can damage it.” This declaration is accompanied by an image
in which we can see a razor passing over gauze, ripping it and causing a hole
therein.
In the plaintiff’s opinion the advert is calumnious to razors, and, therefore,
contrary to Rule 21 of the Self-Regulation Code of Conduct which establishes
that:
“Advertising should not slander or slight, either implicitly or explicitly, other
companies, activities, products or services. The declarations set down in the
advertising message will not be considered slander if they are exact, true and
relevant. In particular, allusion to the personal circumstances of the employer
or his/her company will not be considered relevant.”
Likewise, Gillette España, S.L. understands that the advert violates Rule 5 of
said Code, which prohibits exploiting the consumers’ fear, alleging that the
advert instills an unjustified fear by identifying the use of razors with the risk
of suffering quite considerable injuries to the skin.
In its ruling, the Self-Regulation Jury considers that we have a case of
advertising that is slanderous to razors. In its opinion, the advert images do
not correctly transmit the idea of the true effects that depilation has on the
skin. It goes far beyond this, exaggerating its effects and aggressively
representing effects that could be considered devastating for people’s skin.
This idea is reinforced by the declaration that accompanies the images, where
it indicates that depilation can damage the skin.
Nevertheless, the Jury does not consider that the advert infringes Rule 5 of
the Self-Regulation Code of Conduct as it is improbable that the advert
objected to can generate fear or instill consternation among the consumers.
In consequence, the Jury allowed the complaint by Gillette España, S.L. and
declares that the advert infringes the principle of non-defamation of the Self-
Regulation Code of Conduct.
Comments: Although it is illicit to use a certain degree of “advertising exaggeration”, it
should not be capable of slighting other products or services.

SWEDEN
Michael Plogell
Wistrand Advokatbyrå
michael.plogell@wistrand.se
www.wistrand.se
1. Case Report
Topic: Unfair marketing of “pharmaceuticals”
Parties: Cilag A.G. /. Ellen AB
Where: Market Court, Case MD 2005:9
When: March 2005
What Happened: Ellen marketed its tampons by stating that the tampons had preemptive,
curing or similar qualities against illnesses. According to established case
law, products marketed by the use of such remarks, are to be viewed as
pharmaceuticals.
Pharmaceutical products need mandatory approval under the
Pharmaceuticals Act before they may be put into the market. As Ellen’s
tampons did not have the required approval it was considered unfair
marketing to use the abovementioned statements.
Comments: Indications of curing effects and similar should not be used for products that
are not subject to approval under the Pharmaceuticals Act.
2. Case Report
Topic: Marketing of meat
Parties: Danske Slagterier, SA Brussels /. Scan Foods AB (“Scan”)
Where: Market Court, Case MD 2005:8
When: March 2005
What Happened: Scan had inter alia used two statements in its advertising practice, (i) “Choose
imported pork and you will get pharmaceuticals for free. We cannot offer
this for free, as our pork is completely free of antibiotics.” And (ii) Christmas
ham made from the world’s greatest pork.” These statements were
challenged by Danske Slagterier who claimed them to be misleading, unfair
and discreditable.
Generally all statements used in advertising must be reliable and correct. In
this case the Market Court established that the first statement (i) implied that
imported meat contains antibiotics, whilst the Swedish one does not. As Scan
could not prove this true, the statement was contrary to the Market Practises
Act (“MPA”). Regarding the second statement (ii) the Market Court
established that such a general and unreserved statement on the quality of
the pork was to be interpreted as Scan’s pork was claimed to be superior to
all other pork. Seeing that the statement was so generally put, it could be
questioned whether it was possible to prove at all. The documentation Scan
brought forward indicated that Scan’s pork was of a good quality but the
documentation was not sufficient to prove the general and unreserved
remark. Consequently, Scan had breached the MPA and was enjoined from
continuing the practice subject to a conditional fine.

Comments: The Swedes illusion of producing the world’s best Christmas ham is now
crushed. Or at least it cannot be proved to be true.
3. Case Report
Topic: Damages under the MPA
Parties: Mag Instrument, Inc. (“MAG”) / Libro Invest AB (“Libro”)
Where: Market Court, Case MD 2005:6
When: February 2005
What Happened: In a judgment of the Stockholm City Court Libro was found to have mislead
consumers by marketing a torch similar to the one sold by MAG. Libros’s
torches were considerably cheaper that MAG’s. MAG was granted damages
for goodwill loss but not for loss of sales. MAG appealed the Market Court
where it claimed damages for lost sales. Subsequently the case only
concerned the issue of damages due to loss of sales, which is recoverable
under Swedish tort law.
The grounds for the decision started by making general remarks on the
objectives of damages, i.e. to act preventive and provide an acceptable basis
for economic compensation due to violations of the MPA. The burden of
proof as regards the extent of a damage lies on the claimant. Obviously the
extent of damages relating to loss of sales can be very hard to prove. Swedish
tort law includes a rule that applies when there are difficulties to fulfill the
burden of proof meaning that courts under certain circumstances may
appreciate the amount of damages to a fair amount (35:5 of the Swedish
Code of Procedure).
The proceedings had shown that Libro had sold approximately 10,000
torches. Market Court held that Libro’s sales most certainly had affected
MAG’s sales negatively since at least some people who bought Libro’s torch
would have bought MAG’s in the absence of Libro’s torch. Given that it was
impossible to verify an exact amount of lost sales, it was for the Market Court
to appreciate the amount in light of the abovementioned rule.
Comments: Although 35:5 of the Swedish Code of Procedure does not take away the
burden of proof, it nearly does. According to this case there seems to be a
presumption that the sales of one company must affect another.
4. Case Report
Topic: E-mail and SMS advertising
Parties: The Consumer Ombudsman (“KO”) / Call AB
Where: The Market Court, Case MD 2004:25
When: October 2004
What Happened: Call had sent SMS and e-mails to consumers. The KO inter alia challenged the
practice on grounds that the messages could not be identified as advertising,
which is required under the MPA. The Market Court established that
sending e-mails and SMS is similar to direct marketing by ordinary mail. As
to ordinary direct marketing there is generally no requirement that you state
on e.g. an envelope that it contains advertisements. The Market Court
considered the heading of an e-mail or sender line of an SMS to be equal to
an envelope.
In the present case neither headings nor the sender lines indicated that the
messages were advertising. Since you had to read through the whole e-mail
respectively SMS to find out that the message was advertising it did not

fulfill the requirements of the MPA. Consequently Call was ordered to stop
the advertising subject to a conditional fine.
Comments: To be on the safe side headings or sender lines should indicate that a
message is advertising.

SWITZERLAND
Peter Hofer
Frick Hofer Hunziker
peterhofer@rabenhaus.ch
www.rechtsanwaelte-rabenhaus.ch
1. Jurisdiction
Topic: Similarity of trade marks
Who: Travel Agency against Airline
When: October 2004
Where: Eidg. Rekurskommission für geistiges Eigentum
Published: SIC 2/2005 page 135 ff. (Zeitschrift für Immaterialgüter-, Informations- und
Wettbewerbsrecht)
What Happened: Air Travel Office with the Trade Mark “Jet Tours” claimed against Easy jet
against their registration of a trademark “easyJet tours”. The commission had
to answer the question if the services of a travel agency and of an airline
could be regarded to be similar. The commission split up the various services
mentioned in class 39 and 42 and approved the claim for a part of the
services such as organisation of transport, of people, arrangements of cruises,
holidays business travel and excursions but not for the use of catalogs,
promotion material etc. and not for the transport of goods and people by air
and air travel registration. These services had a different level in a travel
agency than in an airline.
2. Jurisdiction
Topic: Domain-name
Who: Swiss Federal Court Lausanne
When: 8 November 2004
Published: SIC 3/2005 page 200 ff.
What Happened: A German company with a registered trade mark “Riesen” claimed against a
Swiss person with the name Stephan Riesen who had registered a Domainname
“riesen.ch”.
First the supreme court checked if “Riesen” could be considered a famous
trade mark which it was not, since it was only know to approve 40 % of the
customers. Then it checked the use of the domain name as trade mark and
came to the conclusion that it was not used for the same or similar products,
therefore the claim was denied.
Comments: Interesting: The use of domain-names is regulated by the Trademark Law
and the Federal Law against Unfair Competition.
3. Jurisdiction
Topic: Unfair Competition
Who: Swiss Federal Court Lausanne
When: 4 February 2005
Published: Is going to be published in the Amtliche Sammlung (BGE)
What Happened: Several Swiss companies who had published their own advertisements for
real estate on their websites claimed against a company named Nexpage AG
who gathered and used the plaintiff’s advertisements of real estate for own
business purposes on its website. The Supreme Court stated that the

published advertisements aren’t protected by Intellectual Property rights.
And it made clear that in Switzerland imitating services is allowed basically
but can infringe the Federal Law against Unfair Competition. The court
decided that the company’s own effort when it was overtaking the foreign
advertisements and using them on its own homepage was big enough so that
this behaviour was not unfair. Only taking possession of a foreign product
with any or very little own effort is unfair. Therefore the claim was denied.

TURKEY
Mehmet Gün & Co.
gun&co@mehmetgun.com.tr
www.mehmetgun.tr
1. Case Report
Authority: The Advertising Board
Topic: Coverage Area
Who Turkcell İletişim Hizmetleri A.Ş.
When: 08.03.2005
Where: Turkey
The Facts: Turkcell, a GSM company, advertises photographs in fixboards, megalights,
and bus stops showing the natural and historical beauties of Turkey
accompanied with the slogan: “Here, there, everywhere... Turkcell". The
different places photographed, are places where it is particularly difficult to
establish mobile telephone service, such as on the top of a high mountain, a
coastal village surrounded by high mountains and so forth.
Decision: The Advertising Board held that the advertisement, gives the impression to
the consumers that the company's service covers every place in Turkey
without any exception, thus ordered the advertisements to be halted and the
company to pay fines.
2. Case Report
Authority: The Advertising Board
Topic: Kosla Oxi Action
Who Reckitt Benckiser Temizlik Malzemesi San. ve Tic. A.Ş
When: 11.01.2005
Where: Turkey
The Facts: The firm’s commercials aired in TV channels asserting that Kosla Oxi Action
clears the ink stains away.
Decision: The Advertising Board file held that the tests and analysis by Anadolu
University Department of Chemistry showed that the statements in the
commercial did not represent the truth;
Thus the commercials violated Article 16 of Law of Protection of
Consumers Law, No. 4077, ordered the advertiser Reckitt Benckiser
Temizlik Malzemesi San. ve Tic. A.Ş. to pay fines and the
commercials to be halted.
3. Case Report
Authority: The Advertising Board
Topic: Telecommunication Services
Who Netone Bilgi ve İletişim Hizmetleri A.Ş.
When: 11.01.2005
Where: Turkey
The Facts: The firms’ advertisements published with the slogan, “Everything shall be
solved soon… We will talk to each other more clearly…” in a journal in the
related sector. The advertisements also illustrated internet, long distance
telephone services, data/VPN services, high prices, formalities, international
calling services represented by ball shaped cables in a mess; while it showed

single bill, customer portal, 24-7 support, flexible pricing options, service
guarantees and the like on a straight single “netone” cable.
Decision: The Advertising Board decided that ball shaped cables in a mess
represented the services provided by Telekomünikasyon A.Ş., thus
the advertisements depreciated the company. The Board held that
the advertisements violated Article 16 of Law of Protection of
Consumers, providing decency in advertising and ordered the
advertisements of Netone Bilgi ve İletişim Hizmetleri A.Ş. to be
halted.
4. Case Report
Authority: The Advertising Board
Topic: Cosmetics
Who Cosmetic Company
When: 08.02.2005
Where: Turkey
The Facts: The advertisement bearing the heading of “New Vichy Normaderm” by Loreal
Türkiye Kozmetik San. ve Tic. A.Ş., published in nationwide papers in
various dates such as the Sunday annex of Milliyet on 02.05.2004, by giving
percentages and definite statements it was asserted that skin problems and
wrinkles could be removed in some extent.
Decision: The Advertising Board held that the definite and precise statements
by the advertiser could not be proven; the advertiser had the burden
to prove the concrete claims in the advertisement pursuant to article
16 of Law of Protection of Consumers; the advertisement violated the
said article thus had to be halted.
5. Case Report
Authority: The Advertising Board
Topic: Cosmetics
Who Cosmetics Company
When: 11.01.2005
Where: Turkey
The Facts: Loreal Türkiye Kozmetik San. ve Tic. A.Ş. placed an advertisement in a
national newspaper on 03.04.2004 for its “Biotherm” with the slogan, “Your
Anti-cellulite care”.
Decision: The Advertising Board asked Hacettepe University Medical School,
Department of Dermatology to review the test results submitted by the
advertiser Loreal Türkiye Kozmetik San. ve Tic. A.Ş. to see whether they
have any scientific validity. The report dated 13.07.2004 stated that the
percentages given in the documents were based on the surveys and the
surveys alone could not be regarded as scientific evidence; additionally the
study aiming to show the visible lessening in the orange appearance of the
skin was inadequate, the effects of the product were not even compared with
another moisturizing product.
The Board based its decision on this report and held that the advertisements
were in breach of Article 16 of Law of Protection of Consumers and ordered
the advertisements by Loreal Türkiye Kozmetik San. ve Tic. A.Ş. to be halted.

UNITED KINGDOM
Brinsley Dresden
Lewis Silkin
brinsley.dresden@lewissilkin.com
www.lewissilkin.com
1. Self-Regulation
Topic: Regulation of general insurance products in the UK
Who: Financial Services Authority
When: 14 January 2005
What Happened: The Financial Services Authority (“FSA”) has taken control of the regulation
of general insurance products and many retailers will now come under its
scrutiny. The recent experience of AXA Sun Life at the hands of the FSA will
therefore be of more than a passing interest.
The FSA gave AXA an unwelcome Christmas present in the form of a
£500,000 fine for running two misleading television campaigns. The first was
for with-profits endowment policy and initially ran for 4 months at the start
of 2003. It contrasted the returns from the AXA policy with those from a
building society account but failed to calculate the compound interest
correctly, resulting in an unduly favourable comparison. AXA corrected the
mistake of its own volition immediately after its discovery, but did not
mention anything to the regulator until the FSA launched its own inquiry
several months later.
The second campaign was for a life insurance policy and was criticised for
failing to provide enough information about the workings of the policy, the
risks attached, and the costs of cancellation.
Comments: Although AXA was credited with having fully co-operated with the
FSA’s investigation and for having ensured that consumers were
properly compensated, the FSA was anxious to send a clear message
through the hefty fine: they will come down on misleading
advertising, not just mis-selling, even if consumers have suffered no
loss.
2. Advertising
Topic: Viral Marketing
Who: Volkswagen
When: Winter 2004
What Happened: Volkswagen is no stranger to viral marketing. Its 2003 campaign revved up
£180m in additional UK diesel sales revenues and won more awards than
you can fit in a Golf. The ad featured a little girl whose reaction to life’s little
upsets is a despairing, “Bollocks!” - a response she learnt from her father
when he put petrol in his diesel car. A response that VW now understands
all too well.
If you haven’t seen the “Suicide Bomber” ad, you probably never will. In a
curious pitch, two creatives, unknown to VW or its ad agency, created a
maverick spoof of the “Polo: small but tough” campaign. A man in a
kaffiyeh headscarf parks his car outside an al fresco café, looks down and
squeezes a charge. An explosion flashes inside the car. But the undamaged

Polo says it all - small but tough. Creative? Perhaps. Tasteful? No.
VW was swift to distance itself and threatened to sue the creatives for
defamation and trade mark infringement, but cynics saw a parallel with Ford
Ka Sport viral campaigns featuring a decapitated cat and a swatted pigeon. It
appeared that Ford protested too much, especially when it transpired the
work had been created by its own agency.
Comments: In this case, the creative pair have apologised and confirmed that
they were working alone. In return, VW has agreed not to pursue
them for damages and has dropped the lawsuit. As for their
prospects of a job offer from VW or its ad agency, it’s a case of don’t
call us..…
3. Legislation
Topic: Freedom of Information
When: 1 January 2005
Regulation: Freedom of Information Act 2000
What Happened: Reports of government departments being deluged under piles of a fine
white substance had nothing to do with the winter weather.
In fact, it was a result of systematic document shredding across government
on a scale that would make an Enron executive blush, designed as a preemptive
strike in anticipation of the Freedom of Information Act 2000
coming into force on 1 st January 2005.
If a public authority receives a request for information on a matter such as a
marketing services contract, it will now have just 20 days to grant access to
that information, or determine whether one of the 23 exceptions applies, only
two of which are likely to be relevant. The first applies to information
supplied in confidence, provided that it remains genuinely confidential at the
date of the request. The second relates to trade secrets.
As it is impossible to contract out of the Act, how can agencies protect their
information? Negotiate a duty on the public authority to notify and consult
about information requests. Make an advance assessment of what
information might be exempt. Format documents to make potentially exempt
information readily identifiable and divisible.
Comments: In some countries that have enacted similar legislation, information
requests frequently come from competitors fishing for intelligence
about their rivals. So if your agency has ever contracted with any one
of the 100,000 public authorities caught by the Act, or even only
pitched to one, you had better hope that your documentation found
its way into the shredder too.
4. Public
Consultation
Topic: Moral rights for performers
Who: UK Performers
When: October 2004
Consultation: Consultation on regulations implementing performers’ moral rights in the
UK resulting from WIPO Performances and Phonograms Treaty obligations
(WPPT)
What Happened: The UK Government is seeking to bring in new Regulations to give actors,
musicians and variety artists’ “moral rights”. At present, UK legislation does

not specifically provide for performer’s moral right, despite the requirement
in Article 5 of the WPPT. Performer’s moral rights give performers two new
rights; the right to be identified as the performer in respect of their
performances and the right to object to any prejudicial distortion or
modification of their performances.
The new Regulations try to balance the interests of performers and of those
who organize or promote performances. This will mean that performers will
now benefit from most of the rights previously only available to authors and
directors.
It is proposed that the new moral rights for performers will cover any type of
live performance and to sound recordings of any type of performance.
However, there are a number of exceptions to the new rights, one of which is
that they will not apply to performances given for the purposes of
advertising any good or services.
Comments: Moral rights are sometimes seen as the lowly relation to copyright,
which grabs most of the headlines. However, moral rights carry
more legal venom than their virtuous name suggests. If the draft
Regulations are approved, performers will have new weapons to add
to their legal armoury whilst users of performances will need to
ensure that their contracts are updated to take into account the new
changes.
5. Case Report
Topic: Comparative Advertising
Who: O2 Limited and O2 (UK) Limited -v- Hutchison 3G UK Limited
When: November 2004
What Happened: The failed application by O2 late last autumn for an injunction against 3’s
television advertising campaign featuring a price comparison with O2 and
using bubble imagery shows, once again, that the English courts will take a
robust approach to matters of comparative advertising.
It is now well established that the courts will not prohibit comparative
advertising that uses a rival’s trade mark unless it is significantly misleading.
By the time of 3’s case, the date for implementation of the so-called
Comparative Advertising Directive had passed, so English law had to be
interpreted in line with it, as far as possible. O2 therefore repeated the
argument raised by BA in its earlier case against Ryanair, to the effect that
determining what amounts are ‘significantly misleading’ should be judged
by reference to the 8 criteria laid down in the Directive. Once again, however,
the court indicated that as the Directive expressly states that it is not
intended to create a cause of action between competitors, the criteria could
not be applied in that way.
Comments: The specific example quoted in the commercial was accurate and
demonstrated a significant price savings in favour of 3. On the other
hand, O2 countered with evidence that in some circumstances, they
are cheaper. The judge was satisfied however, that for the most part,
the consumers to whom the commercial was directed would save
money with 3 and therefore, despite the individual exceptions, the
claims were fair and not misleading, thereby blowing a metaphorical
raspberry at O2’s injunction claim.

6. Case Report
Topic: Licensing Intellectual Property
Who: Nescafe
When: January 2005
What Happened: Marketing executives at Nestle had to wake up and smell the coffee in late
January 2005 when a court awarded ‘Grande’ damages of US$ 15.6m to
model Russell Christoff, 16 years after a photo shoot for which he was paid a
single shot of US$ 250.
In 1997, a Nestle employee apparently stumbled across the ill-fated snap.
Without checking usage rights, Nestle then used it in marketing materials for
its “Taster’s Choice” brand of freeze dried coffee across the US, Mexico,
Japan and elsewhere. Christoff only noticed the offending jars on a routine
trip to the ‘mall’ in 2002. He was awarded $300,000 for use of his likeness and
a whopping 5% of the sales profits between 1997 and 2003.
The irony is that Christoff has explained to the world’s media that it took
him 5 years to discover the jars because he doesn’t drink instant coffee, only
freshly ground. Of course, a release form could have gagged such comments.
All of which must have left Nestle with a very bitter aftertaste indeed.
Comments: Everything is bigger in the USA, including damages awards, but that
is not to say that a similar claim could not have succeeded here. An
unknown model could not rely on Eddie Irvine’s victory against
TalkSport as the basis of a claim in passing off and we don’t have
statutory personality rights like those in the US. But a model here
could probably win a contractual claim for the reasonable licence fee
for the relevant usage rights.
7. Trade Marks
Topic: Registerability of advertising slogans
Who: European Court of Justice
When: October 2004
What Happened: Trade marking advertising slogans has always tricky, as most lack the
distinctiveness required for a registered trade mark. The decision of the
European Court of Justice in October 2004, about distinctiveness in the
slogan ‘das Prinzip der Bequemlichkeit” (the ‘principle of comfort’), is therefore
most welcome.
OHIM, the European Trade Mark Office in Alicante, originally concluded
that (unlike word or image marks) ad slogans need an additional imaginative
or original element to acquire distinctiveness. Thankfully, the ECJ disagreed.
Imposing such criteria on specific categories of trade mark, such as
advertising slogans, could not be justified: one test fits all.
The argument that the slogan was merely descriptive was also rejected. The
combination of words was considered uncommon by the ECJ and not
exclusively made up of the goods’ qualities.
The ECJ did, however, side with OHIM on one point. The fact that a word or
a phrase is commonly used in trade does not necessarily mean that a slogan
is devoid of distinctiveness. To be distinctive, a mark must simply
distinguish the goods of one company from those of another, such as ‘the
mint with a hole’. But, more often than not, this kind of consumer
recognition only exists with use and time.

Comments: Although this is good news for advertisers, we should add one word
of caution. Don’t expect the UK trade marks registry to suddenly go
soft on slogans that are not a ‘badge of origin’. Or to put it another
way: “If you want a trade mark registration for your slogan? Come
to sunny Alicante!”
8. Self-Regulation
Topic: Misleading Advertising
Who: Office of Fair Trading
When: Winter 2004
What Happened: A twenty first century British Expeditionary Force has once again ventured
into plucky little Belgium to keep dear old Blighty safe from Johnny
Foreigner. And this time, it really was all over by Christmas.
In December, the Office of Fair Trading obtained an injunction in Brussels
against a Belgian company that had been sending about one million mailings
every month into the UK, purporting to be notifications of large prize wins -
typically £10,000 - which would be paid out when the recipient placed an
order from the accompanying catalogue. In reality, the punters were placed
into a prize draw whose winners had been pre-selected, and most of them
ended up with nothing. The fact that the company received 4,000 orders
every day suggests that the old adage about there being one born every
minute was probably an under-estimate.
The sting in the tail for the company concerned, D. Duchesne, who trade in
the UK as TV Direct and Just 4 You, is that they will be fined 25,000 Euros
(about £17,250) every time they breach the injunction.
Comments: This is the first time that cross border court action has been taken in Europe
by the regulators using their powers under the Injunctions Directive. When
the OFT’s request for an undertaking to comply with the Misleading
Advertising Directive was refused, an injunction application was its only
alternative.

UNITED STATES
Douglas J. Wood
Jennifer L. Yu
Reed Smith LLP
dwood@reedsmith.com
jyu@reedsmith.com
www.reedsmith.com
www.adlaw.com
1. Topic: Misleading Weight Loss Advertising: Claims That Seem Too Good To Be
True
What Happened: Misleading weight loss advertising is everywhere. Deceptive weight loss
claims that prey on consumers seeking an easy solution have increased
significantly in the past 2 years. Claims for diet products that promise
weight loss without sacrifice not only cheat consumers out of their money,
but some even pose serious health hazards. Many supplements, sold
through fraudulent ads, are of unproven value or have been linked to serious
health risks according to the U.S. Food & Drug Administration. Last year,
ephedra (or ephedrine alkaloids) was found to be associated with dangerous
effects on the central nervous system and heart and may result in serious
injury for some persons. It has since been pulled from the U.S. market.
Comments: By learning to spot the tell-tale signs of fraudulent weight-loss advertising,
you can help protect your clients and the good name of your legitimate
advertisers.
2. Topic: Celebrity Endorsement: The FTC (Federal Trade Commission) Strikes Out
When: September 1, 2004
Where: Ninth Circuit Court of Appeals
What Happened: In 2000, the Federal Trade Commission filed suit against baseball legend Mr.
Steven Garvey along with the producers of infomercials for the manufacturer
of Enforma Natural Products of Encino, California. The FTC claimed false
advertising and other violations of the Federal Trade Commission Act in
connection with ads for the “Fat Trapper” and “Exercise in a Bottle” that
make up the “Enforma System.”
The Ninth Circuit, in an opinion filed on September 1, 2004, affirmed a
District Court’s finding in favor of Mr. Garvey since the FTC had failed to
show that Garvey intentionally or recklessly made false claims about the
Enforma System.
The Garvey decision is the highest ruling covering FTC policies on celebrity
endorsements, and the most significant since a settlement involving singer
Pat Boone for his endorsement of an acne medication in the 1970’s.
Comments: Despite the Garvey ruling, celebrity endorsers should continue to be careful
with the types of products they endorse and the claims they make about
those products as the FTC is not likely to step back from its regulatory stance
on this issue.

3. Topic: A Different Standard: Reaching out to Children
What: FTC: Marketing of Violent Entertainment to Children.
When: July 2004
What Happened: In general, children have greater difficulty evaluating advertising claims and
understanding the nature of the information provided to them. Advertisers
and the entertainment industry should be extra cautious when reaching out
to the young audience.
In July, the FTC issued a report on the Marketing of Violent Entertainment to
Children. The report concluded that the motion picture, music recording,
and electronic game industries continue to advertise violent and explicit
movies, games and music in media widely watched by teens and that teens
can purchase R-rated products at many locations.
Further, the report recommended that these industries improve efforts to
avoid advertising restricted or labeled products in venues popular with
under-17 audiences and that rating information disclosures be improved.
Comments: The FTC report shows that, if the entertainment industry does not curb the
marketing of violent entertainment to children, government regulation may
not be far behind.
4. Topic: Online Casino Gambling
Who: Department of Justice (“DOJ”), US advertising forums, & Offshore Online
casinos
What Happened: Online casinos and poker rooms continue to escalate in growth. An
important factor in this growth has been the advertising of online gambling
sites in U.S. media such as television, radio, print publications, and other
online sources, including search engines, e-zines and affiliates.
Online casinos are illegal in the U.S. Further, there has been much recent
controversy over the permissibility of advertisements for legal offshore
online casinos on U.S. web sites.
This controversy started in 2003 when the Department of Justice (DOJ) sent
letters, and later subpoenas, to a number of media organizations, requesting
that they instruct their members that accepting Internet gambling
advertisements might subject them to prosecution.
In the summer of 2004, Casino City, a company which hosts web sites with
links to online casinos, filed a complaint against the DOJ seeking a
declaratory judgment ruling that advertisements for online casinos are
protected by the First Amendment. On February 15, 2005, the suit was
dismissed with prejudice. Not content with dismissing the suit based on the
several procedural grounds argued by the DOJ, the judge made what many
will consider to be a substantive ruling that the advertisements in question
are not protected by the First Amendment guarantee of the right to
commercial free speech.
Notes: Casino City Ruling available here: http://www.gambling-lawus.com/Articles-Notes/Ruling.pdf

5. Topic: Degrees of Deception: Internet and Consumer Fraud
What Happened: Many online education programs, also known as “diploma mills,” offer
degrees or certificates for a flat fee, through programs that require little
course work, if any, and often award degrees based solely on life experience.
They even claim that they are accredited when they are not. Such fraudulent
institutions have increased in the recent years due to the accessibility of the
Internet.
Colleges and universities accredited by legitimate organizations must
undergo a rigorous review of the quality of their educational programs.
Although many diploma mills claim to be accredited, their “accreditation” is
often from a spurious, but official-sounding agency that they created.
The FTC is taking a strong stance in stopping “diploma mill” fraud.
Comments: The United States Department of Education (“DOE”) has a website,
www.ope.ed.gov/accreditation, for checking out the DOE's "Postsecondary
Educational Institutions and Programs Accredited by Accrediting Agencies
and State Approval Agencies Recognized by the U.S. Secretary of Education"

URUGUAY
Dr. Rafael Zerbino
Bado, Kuster, Zerbino & Rachetti
rzerbino@bkzr.com.uy
www.bkzr.com.uy
1. Topic: Image Rights
Where: Civil Court of first instance of the 6 th Circuit
When: July 1989
What Happened: The reproduction on the cover of an exercise book, among other city sights, is
a picture showing the plaintiff in the role of "Mama Vieja" in the "Llamadas"
carnival parade.
Comments: The reproduction of the image does not constitute an illicit conduct pursuant
to Subsection 3 of Article 21 of Law No.9.739, which establishes exceptions to
the rule of express consent.
Our case law held that the provisions of Article 21 of the referenced law
apply to the individual, but not to the character being interpreted. In
application of this criterion, the person whose image in the interpretation of
the character of "Mama Vieja" was used on the cover of an edition of exercise
books was excluded from this norm.
This is confirmed in Subsection 8 of Article 45 of Law No. 9.739*. In the first
place, because the event shown in the picture took place in public within the
context of an activity traditionally open and expansive, such as the
celebration of carnival and the participation in this type of event implies a
waiver of privacy, knowing full well that the image will be widely
publicized. In the second place, because the image whose reproduction
figures on the cover of the exercise books, is not the picture of the plaintiff,
but of the character being interpreted by an individual, there is no interest in
the person playing the part of "Mama Vieja".
*The ruling of this landmark case was based on the provisions Art. 21 of Law
No.9.739. The new Copyright Law No. 17.616 of 10 January 2003 has
modified several articles of this law, but the provisions of Art. 21 remain
unchanged.
2. Case Report: María Tarabal vs. Diario El País S.A.
Topic: Infringement of Image Rights
Where: Civil Court of first instance of the 5 th Circuit
When: December 1997
What Happened: The picture of Magela Buysan, a publicity model, was used in the sales
promotion of a magazine, without consent. Ms. Buysan sued for damages
for civil liability not covered by contract and unjust enrichment.
Although the plaintiff was photographed in a public place -the weekly Feria
in the Villa Biarritz Park- and the picture published with her consent in the
society pages of the magazine "Paula" published by El País S.A., later on and
without her consent, the image was used to promote the sale of said
magazine in publicity spots in TV and advertisements in the press.

The court held that the image rights have been infringed upon due to the
circulation of a photograph for advertising purposes without consent.
The conduct, which violates image rights, constitutes an illicit act that can be
indemnified in conformity with Article 1319 of the Civil Code and
specifically Article 21, Subsection 1 of Law No. 9.737 (article, which has not
been modified by the new Copyright Law No. 17.616 of January 2003).
The court accepted the propriety of pecuniary damages as the photograph is
marketable, i.e. it can be put into circulation for payment. There is a value
derived from the picture, which is taken advantage of by the person using
the picture.
The court held that there was a case of lost profits, as the plaintiff was a
model, who normally gets paid a fee for promotional "spots" or publicity.
The damages were calculated on the basis of the model's regular fees for
publicity "spots".
The defendant filed an appeal against the decision of the Judge in first
instance, but the ruling of first instance was confirmed, awarding pecuniary
damages calculated on a publicity model's fee schedule. As the plaintiff
failed to prove moral prejudice, the court did not award compensation.
Comments: Consequently, it has to be pointed out that the mere fact of having
authorized the photograph does not imply a waiver of ones rights.
Therefore, we agree with the Judge in that the image rights of the plaintiff
have been infringed upon by virtue of the circulation of her photograph for
publicity purposes without her consent, a conduct that constitutes an illicit
conduct and entitles the plaintiff to damages.
3. Case Report: Associazione dei Siciliani en Uruguay vs. AUDAP
Topic: Discriminatory or offensive publicity
Where: Out-of-court complaint
When: 29 July 1994
What Happened: The "Associazione dei Siciliani in Uruguay filed a complaint with AUDAP
(Uruguay Association of Advertising Agencies), denouncing a commercial
which in their view was offensive to the Italian community.
The commercial showed a scene where a grandfather and an apparent
counsellor treated the grandson as a traitor for "working" within the law;
even more, they reproached him for "not going to the nightclubs anymore"
and for having forgotten what grandmother had taught them: "lie to the
teacher", "never do the scores" and now "working". By all appearances, the
commercial was inspired by a scene from "The Godfather", showing the
grandfather smoking in the background and the counsellor, hardly hiding a
gun under his waistcoat, saying: "el cento per cento, cuanto si gana?"
suggesting that the grandfather find a new source of income.
In the view of the Associazione dei Siciliani in Uruguay, this publicity
constitutes an offence to the Italian community. The offence was considered
even more serious, due to the fact that the commercial in question was in
promotion of the State Lottery, the Lottery and Pools Office being an Agency
of the State.
In their complaint, the Association made a strong point of the provisions of
the Universal Declaration of Human Rights, which stipulates in its Art. 13.5:

"The law prohibits all propaganda in favour of war and all justification of national
racial or religious hate, which constitute an incitement to violence or any other
similar illegal action against any individual or group of individuals for whatever
reason, including race, colour, religion, language or national origin.
Comments: The commercial was taken off the air without recourse to the courts.
4. Case Report: Marcelo Porras vs. Banco de Seguros del Estado and M.R.M. Publicidad
Topic: Infringement on Image Rights
Where: Civil Court of first instance of the Second Circuit
When: 7 October 1998
What Happened: The defendants used a photograph of the plaintiff (taken in the Boxing Club
Palermo, in classic apparel and boxing posture) in a TV spot called
"Photographs" relating to disability insurance.
In first instance the co-defendants argued that the airing of the picture on TV
was related to "scientific, didactic and, in general, cultural purposes or
circumstances and activities of public interest or which took place in public".
The defendants tried a thesis based on the presumption that the only
purpose of the ad was to prevent accidents in the workplace, and that no
profitability was involved. The judge confirmed this position in first
instance.
In the second instance the court held that, although the final purpose of the
ad was the prevention of accidents in the workplace, there is no doubt that
the advertising agency did have profit in mind. The plaintiff never
authorized the use of his image in publicity.
The judge in second instance granted damages in the amount usually paid to
an actor for a "photoslide", in conformity with the Fee Schedule of the
Uruguayan Actors Society.
Comments: It cannot be argued that the advertising agencies acted without profit in
mind and that their conduct was based on values of cultural, scientific or
didactic nature only. The advertising agencies have been engaged with a
commercial purpose. They were paid for their work according to the
creativity, structuring and circulation of the publicity spot.
5. Legislation: Law No. 17.250 – Consumer Protection Law
Topic: Advertising
Comments: The legislation regarding this subject matter is still very recent.
The Law stipulates that all advertising must be transmitted and published in
a manner, which enables the consumer to recognize it as such ("Principle of
identification of advertising").
Misleading advertising is prohibited by means of a flexible definition.
Information is considered "misleading" if it induces somebody into error in
respect to the nature, quantity, origin or price of an advertised object.
Quality is not included, wherefore it is not taken into account in assessing the
deceit.
In the event of evidence of misleading or unlawful advertising, the
competent authorities may judicially file for suspension of the advertisement
or require clarification or counter advertising, independently from the other

penalties stipulated in the law.
The essential aspects in relation to advertising, particularly "comparative"
advertising have been contemplated in the Consumer Protection Law No.
17.250, enacted in August 2000. In its Art. 25 de Law admits comparative
advertising, subject to the objectivity of the comparison and the possibility of
proving the assertions made in the advertisement.
6. Legislation: Law No. 17.011 – Trademark Law
Topic: Registration of "slogans" or "publicity phrases" as trademarks
Comments: In Art. 3, this law, as most modern legislations in this matter, expressly
stipulates the possibility to register "Slogans" or "publicity phrases" as
trademarks.
The new legal text confirms the registration of "publicity phrases", whenever
they show a distinctive character.
Although registration was possible under the former law, Law No. 17.011
provides for the standardization of a contradictory and erratic administrative
jurisprudence.
By the way of illustration we shall indicate some examples of the "slogans" or
"publicity phrases", which have been registered under the new law: "Nothing
powers your life like energizer" (Eveready Battery Company, Inc.), "From Farm
to Fork" (S.C. Johnson Commercial Markets, Inc.), "Más blanco no se puede"
(The Procter & Gamble Co.), "Se tiene o no se tiene" (Chivas Brothers Limited).
7. Legislation: Law No. 17.616 – Copyright Law (Jan/10/2003)
Topic: Scope of the law in relation to advertising and publicity
Comments: Chapter I, Art. 5, refer to the scope of the intellectual, scientific and artistic
production.
Chapter VII, Arts. 36 to 39, refer to the rights of the interpreting artists, sound
producers and broadcasting entities.
Chapter IX, Art. 44, deal with illegal reproduction and Art. 45 with the legal
reproduction.
Chapter X, provides for the penalties to be imposed in case of infringement
of the law.

VENEZUELA
Ricardo Alberto Antequera
Estudio Antequera Parilli & Rodríguez
ricardoalberto@antequera.com.ve
www.antequera.com.ve
1. Case Report
Regulation: Providence of CADIVI N° 063 “Regime for obtaining the authorization of
acquisition of Foreign Currency, for the payment of leasing and services
contacts, use and exploitation of patents, trademarks, licenses and franchises,
as well as immaterial goods importation”
Who: Foreign Currency Administration Commission
(Comisión de Administración de Divisas – CADIVI)
When: November 30, 2004
Where: Caracas, Venezuela
What Happened: This Providence regulates the regime that Venezuelan individuals and
companies must follow, in order to obtain the authorization of acquisition of
currency for the payment, abroad, of contracts of leasing, services, use and
exploitation of patents, trademarks, licenses and franchises, as well as the
importation of immaterial goods. However, nothing is mentioned regarding
payments in the matters related to Copyright.
According to this new regulation, CADIVI will authorize the acquisition of
currency, whenever:
a) It is demonstrated that the acquisition is indispensable for the
improvement, maintenance or development of a national investment;
b) It is for the payment of contracts of use and exploitation of
trademarks, patents, licenses and franchises;
c) Contracts of importation of technical assistance and technology
services;
d) Contracts of importation for repairing services or equipment and
machinery maintenance, previously imported, to be executed in
Venezuela
e) Payments derived from a contract with the Society for Worldwide
Interbank Financial Telecommunication (SWIFT); and
f) Leasing contracts of foreign goods, which enter the country
temporary.
This authorization will be valid for 120 days, which could be prolonged if
CADIVI consider it necessary and justified.
Additionally, this Providence establishes a special regime for
telecommunications, which applies for the payment of connection services
importations; contracts of installation, maintenance and repairing of
machinery, equipment or imported software, and the importation of
intangible goods, all of them necessary for the telecommunications services
provision.

2. Case Report
Topic: Incorporation of the World Intellectual Property Organization Copyright
Treaty (WCT) and the World Intellectual Property Organization
Performances and Phonograms Treaty (WPPT), to the Venezuelan
Legislation
When: December 23 rd , 2004 and January 3, 2005
Where: Caracas, Venezuela
What Happened: Last December, the World Intellectual Property Organization Copyright
Treaty (WCT)was incorporated into the Venezuelan Legislation, by its
publication in the Official Gazette, , which was drawn up in the Diplomatic
Conference about some matters of Copyright and Neighboring Rights, that
took place in Geneva in 1996.
This Treaty contents dispositions such as:
• The non protection of ideas, procedures, operation methods or
mathematic concept per se;
• The protection of software as literary works, in the same sense as this
are protected in the Bern Convention;
• The protection of data bases;
• Acknowledgement of the exclusives rights of distribution and public
communication;
• Faculty of the Countries of establishing limitations and exceptions to
the acknowledged rights, as long as its not attempting to the normal use of
the work and not causes an unnecessary prejudice to the author;
• Obligation for the Countries to prosecute the elusion of the
technological measures that the authors may use to protect their works;
• The countries are forced to prosecute those persons that modify
without the respective authorization, any information about the
management of the copyright; as well as the distribution and the public
communication of samples of the work, knowing that the information has
been modified without authorization;
In this same sense, last January 3 rd the World Intellectual Property
Organization Performances and Phonograms Treaty (WPPT) also were
incorporated to the Venezuelan Legislation.
This Treaty compiles the rights of the performers and the phonographic
producers, in dispositions such as:
• Acknowledgement of the national treatment principle, for protection
of the foreign performers;
• Acknowledgement of the moral rights of paternity over his
performance, and to oppose to any deformation or modification that could
cause a prejudice to the performer;
• Acknowledgement of the rights of reproduction and distribution;
• Acknowledgement of an equal remuneration to the performers and
phonographic producers, for the broadcasting or any kind of public
communication of the phonograms.

3. Case Report
Topic: The utilization of Free Software in the Venezuelan Public Administration
When: December 28 th , 2005
Where: Caracas, Venezuela
What Happened: Last December the Decree Nº 38.095 was published in the Official Gazette, by
means of which the Public Administration will have to use, with priority,
Free Software developed with Open Standards in all their systems, projects
and computer services.
According to the Decree, in those cases where there is no free software
application, the authorization of the Ministry of Science and Technology
must be requested, in order to adopt another kind of programs or solutions.
The intention of the Venezuelan Government to stimulate the utilization of
this kind of software is clear in the Legal Text, not only in the Public
Administration, when it establishes that the Ministry will anticipate training
courses in this matter for the public officers; that this Ministry will be in
charge of providing the distribution of the Free Software with Open
Standards; establishing policies in order to include this kind of software in
educational programs; and promoting the research and developing of this
programs by granting special incentives; but in the private sector, when it
establishes that “ The National Executive will promote the general use of Free
Software developed with Open Standards in the society, for which it will develop
mechanisms oriented to train and instruct users in the utilization of the Free
Software Developed with Open Standards.”
In this same sense, on November 17 th , 2004, the "First World-wide Forum of
Free Technology" took place, in which different subjects related to Free
Software were exposed. Among others, the project of Centers of
Telecommunications of CONATEL was exposed (the commission in charge
of the matter of telecommunications) which will work exclusively with Free
Software, as well as the implementation of these kinds of programs in the
Ministry of Education.
The central discussion of this event was based on “The advantages of Free
Software and consequently the disadvantages of the Proprietary Software"
the main disadvantage that was pointed was the economic issue that
represents the Proprietary Software for the State.
Another important aspect that was mentioned in this forum was that the
setting out of the Project of the Industrial Property Act is the nonpatentability
of the software, in order to end the advantages that Proprietary
Software has over Free Software, since in several occasions they affirmed that
the Proprietary Software is not interested in the evolution of the society in
the cultural matter.
Also, it is important to indicate that all the exhibitors of the forum agreed in a
certain way, that the coexistence between the Proprietary Software along
with Free Software is necessary, because the advance of Free Software
depends on the existence and the advances of the Proprietary Software.

4. Case Report
Topic: Fair Competition restrictive practices. Resolution Nº SPPLC/ 0007/2005
Case: Televen vs. Venevision and Radio Caracas Television
Who: Ministry of Production and Commerce – Superintendence for the Promotion
and Protection of Fair Competition (PROCOMPETENCIA)
When: February 24 th , 2005
Where: Caracas – Venezuela.
What Happened: Televen made a formal complaint against Venevision and Radio Caracas
Television for the presumable commission of exclusionary practices, boycott
and agreements for fixing fees and commercialization conditions in the
advertising market.
The plaintiff, which is a relatively small TV channel, alleged that Venevision
and Radio Caracas Television, which are the biggest and older TV channels
in Venezuela, were making practices to exclude Televen from the advertising
and national TV investment market, by planning the programming and
sharing the market thru fees and prices agreements and commercialization
conditions for the advertisers, like making contracts which limited the
possibility of contracting with Televen, in the pre-sale seasons.
Televen also alleged that both channels were associated with a company
named Sercotel, which collected the payments that the advertisers were
making for the advertising spaces, and then shared it between the two
channels.
Both channels alleged, among other things, that they did not make
agreements for sharing the market, and that their activities were common
practices in the sector.
Procompetencia decided that indeed there were arranged and exclusionary
practices, since from the evidence was demonstrate the sharing of the
investment of the advertisers and the existence from RCTV and Venevisión
of an agreement of wills to distribute the market of advertising spaces. Also,
that the preferential benefits that RCTV and Venevision had offered to the
advertisers in the pre-sale seasons, conditioning them to exclusivity,
constituted an exclusionary practice.
5. Case Report
Topic: Coming into force of some dispositions of the Radio and TV Social Liability
Act.
When: March 8 th , 2005
Where: Caracas, Venezuela
What Happened: The Radio and TV Social Liability Act, which came into force last December
8 th , 2004, postponed the validity of some of its disposition to lapses of three,
six, nine, twelve, eighteen, twenty four and thirty six months. In this sense,
last March 8 th came into force the following dispositions:
• Adaptation of the TV and radio programs to each programming
hours;
• Broadcasting of one hundred percent (100%) of national
production Propaganda;
• Obligation of the TV channels to publish the programming
guides. Also, before each program the station must announce the kind of
program and the classified elements that it contents; and to broadcast the
programming according to the guides;

• Obligation of the TV channels to publish the programming
guides, before each program announce the kind of program and the
classified elements that it contents; and to broadcast the programming
according to the guides;
• Adaptation of the agreements between the Radio and TV service
providers and the advertisers, according with the dispositions of the Law
that rules advertising matters.
In this sense, next June 8 th , other dispositions will come into force, in which
can be found the prohibition of product placement for advertising, excepting
sport events, whenever it is not of products or services prohibited by the Act;
transmission of at least eighty five percent of advertising of national
production and the fifty minimum percent required of national production in
the all audiences hours (7 am to 7 pm) and supervised hours (5 am to 9 am,
and 7 pm to 11 pm).
6. Case Report
Topic: Publication of the Technical Normative that develops the dispositions of the
Radio and TV Social Liability Act.
When: March 28 th , 2004
Where: Caracas, Venezuela
What Happened: Last March 28 th , was published in the Official Gazette the Technical
Normative about:
a) Broadcasting of musical works in the radio and TV services;
b) Advertising, propaganda and promotions in the radio and TV
services; and
c) Condition for the provision of the services of Radio and TV.
These dispositions were approved by the “Directorio de Responsabilidad Social
en radio y televisión”, a body created by the Act which has, among others, the
competence to impose sanctions and create the technical normative; as the
result of the Public Audiences made by the National Telecommunications
Commission.
The Administrative Providence N° 002, corresponding to the Technical
Normative about Advertising, Propaganda and Promotions in the Radio and
TV Services, establish important definitions that where undetermined in the
Act, such as:
o Placement Advertising: Defined as the one transmitted by placing
images or sounds related to a good or service in programs or promotions,
without being announced as advertising.
o Insert Advertising: The one transmitted by means of the
superposition in the images and sounds of a program, slogans, logos,
symbols, trademarks, or in general any other image or sound related to a
good or service.
o Intrigue Campaign: The advertising, propaganda and promotions,
which for a certain time, does not identify in a clear and explicit way the
good or service, program or announcement that it offers. The time for
presenting to the consumers, the object of the campaign, can not exceed
fifteen days from its beginning.
It also establishes that for calculating the time for transmission set in the
Article 8 of the Act, which determines that the time for diffusion of publicity
will not exceed fifteen minutes for each our of transmission, all the kinds of
advertising, propaganda and promotions will be taken in account, including
infomercials, excepting the placement advertising in the sports events. The

transmission of institutional messages neither will be taken in account.
Inserted promotions should not disturb the vision of the programs, or
occupy more than a sixth of the TV screen; and when a sport program or
show is repeated, will be able to maintain the advertising inserts included in
the original transmission.
Additionally two more Providences were enacted. One regarding the
broadcasting of musical works, which develops the dispositions regarding
the broadcasting of Venezuelan, Venezuelan tradition, Latin American and
Caribbean works. It defines each one of these works and the percentages of
diffusion of each one of them.
The second one, about the conditions for the Radio and TV service provision,
develops the dispositions about the audio intensity, transmission of the
National Anthem, programming hours and the warranty for a responsible
selection of programming.
7. Case Report
Topic: Decision N° 608 of the Andean Community “Regulation for the Protection
and Promotion of Free Competition in the Andean Community”
Who: Andean Community
When: March 29 th , 2005
Where: Lima – Perú.
What Happened: The Commission of the Andean Community (members countries are
Venezuela, Colombia, Perú, Bolivia and Ecuador) in order to watch for the
integrity of the benefits achieved in the Andean Integration Process, decided
to substitute the Decision N° 285 of the Commission of the Cartagena
Agreement “Regulation to Prevent or Correct Distortions in Competition,
Generated by the Restrictive Practices against Free Competition” from 1991,
for the Decision N° 608 of the Andean Community “Regulation for the
Protection and Promotion of Free Competition”.
It is important to emphasize that the said Andean Normative applies only to
the conducts that take place in one or more Member Countries and whose
effects are produced in one or more Member Countries; or in the territory of
a Non Member Country and which real effects are produced in one or more
Member Countries
In consequence, when the origin and effect of the conducts are produced
only in the territory of a country, as well as in those cases not included in the
Decision, the national legislation will apply.
In the specific case of Venezuela, the applicable national regulation is the
“Promotion and Protection of Free Competition Act” (PROCOMPETENCIA
Act) of 1992; the Commercial Code of 1919; the Paris Convention and the
Decision N° 486 of the Common Regime about Industrial Property in the
Andean Community, in the matters of unfair competition related to
Industrial Property.
The Decision N° 608 is a more complete and more elaborated legal text than
the former Decision N° 285, even though it only refers to restrictive practices
to the free competition, and nothing about unfair competition.
For example, when it defines the concepts of “conduct”, “act”, “agreement”,

“economic agent” and “related persons”, all of them tightly related to this
matter. It also establishes the principles of non-discrimination, transparency
and duly procedure, as the base of all competition regulation, both
community and national of each Member Country.
It also creates the Andean Committee of Defense of Free Competition, and a
chapter that pretends to guarantee the promotion of Free Competition in the
sub regional market.
In relation to the determination of the conducts restrictive of the Free
Competition, the dispositions are similar to the ones already adopted by the
Decision N° 285. In consequence, it presumes restrictive those agreements
that pretend: i) the fixation of prices and other commercialization conditions;
ii) restriction of the supply and demand; iii) sharing of the market; iv)
impede the access or permanency of competitors in the market; v) establish
positions in biddings and public auctions.
Additionally, it establishes the conducts that makes one presume the abuse
of a dominant position: i) fixation of predatory prices; ii) fixation of the
exclusive distribution; iii) subordination of contracting to the acceptance of
supplementary provisions; iv) adoption of unequal conditions for the same
economical agents, placing them in competitive disadvantage; v) unjustified
negative to satisfy buying demands, or accept sale offers; vi) incitation to
third parties, to the non acceptance of delivery of goods or the service
provision, or not selling raw materials; vii) those conducts that impede the
access or permanence in the market for different reasons than the economical
effectiveness.
Among the most important aspects of the Decision N° 608, are the new
procedure and the possibility of soliciting precautionary measures.
The procedure is innovative in the following aspects:
• Now, the initiation of the investigation can be requested, not only by
who have legitimate interest or the national integration organisms of the
Member Countries, but by the request of the National Competent
Authorities in the matter of Free Competition. The General Secretary of
the Andean Community also can initiate the investigation.
• The General Secretary of the Andean Community is in charge of
completing the procedure for the initiation of the investigations of the
restrictive practices of Free Competition.
• Is established a 15 days lapse for the Secretary to determine the
fulfilling of all the requirements; 15 days, deferrable for 5 more days, for
completing the request; and 15 days for the Secretary to pronounce about
the initiation of the investigation.
• Previously, 10 days was granted for the devolution, and the same
amount of time for completing it.
• The Secretary has 5 days to request the competent national authorities
in the matter of free competition, the making of investigations for the
determination of the existence of the reported practice, and they will have
to elaborate the “investigation Plan” in 15 days, pointing all the details of
the investigation (actions, chronology, economical agents to whom the
actions are directed, among others).
• The National Authority counts with 90 days to complete the
investigation. During this lapse, the parties will be able to present their
allegations and evidences. Later, the national authority will deliver the
results of the investigation to the Secretary, and it, in 45 days, will have to

make its own determinations, and in 10 days, the investigations report.
The parties have 15 days for presenting written allegations that will be
delivered to the Committee for it to make its own written report within
the next 30 days, and in the contrary it is understood that the Committee
agrees with the technical report made by the Secretary.
• Due the before mentioned lapse, the Secretary will issue its Resolution
about the case, within the next 10 days.
• Is established that at any moment of the procedure, the solicitor will
be able to ask for precautionary measures to the Secretary.
• Also, the Secretary ex officio will be able to establish precautionary
measures, whenever it considers them necessary for protecting the
community interest, with the previous opinion of the competent national
authority of the country where they are going to be applied.
• The execution of the precautionary or corrective measures will be
responsibility of the Government of the Member Countries where the
companies object of the measure have the main business center in the sub
region, or where the effects of the reported practice takes place, according
to the national regulation

ARGENTINA
Dámaso A. Pardo & Gonzalo Barbosa
Pérez Alati, Grondona, Benites, Arntsen &
Martínez de Hoz (h)-Intellectual Property
Suipacha 1111, Piso 18
C1008AAW Capital Federal
54.11.4114.3000
dap@pagbam.com.ar
gb@pagbam.com.ar
www.pagbam.com.ar
AUSTRIA
Stefan Kofler
Greiter, Pegger, Kofler & Partners
Maria-Theresien-Strasse 24,
A-6020 Innsbruck
43.512.571811
stefan.kofler@greiter.lawfirm.at
www.greiter.lawfirm.at
BRAZIL
Valdir Rocha
Veirano & Advogados Associados
Avenida Presidente Wilson, 231, 23.andar
20030-021 Rio de Janeiro
55.21.3824.4747
valdir.rocha@veirano.com.br
www.veirano.com.br
LIST OF CONTRIBUTORS
AUSTRALIA
Peter Le Guay
Cowley Hearne Lawyers Pty. Limited
Victoria Cross Building, Level 10
60 Miller Street, North Sydney
Sydney NSW 2060
61.2.9956.2147
pleguay@cowleyhearne.com.au
www.cowleyhearne.com.au
BOLIVIA
Alexandra Blanco
Guevara & Gutierrez S.C.
Torre Ketal
Piso 4, Oficina 2 – Calacoto
La Paz 9332
591.2.2770808
ablanco@gg-lex.com
www.gg-lex.com
CANADA
Wendy Reed
Heenan Blaikie
P.O. Box 185, Suite 2600, South Tower,
Royal Bank Plaza,
Toronto, Ontario M5J 2J4
416.360.3542
wreed@heenan.ca
www.heenanblaikie.com

CHILE
Rodrigo Albagli & Guillermo Rivas Sureda
Albagli, Zaliasnik & Cia.
Miraflores 130, 25 th Floor
Santiago
56.2.445.6000
ralbagli@az.cl
grivas@az.cl
www.az.cl
COSTA RICA
Uri Weinstok M.
Niehaus & Weinstok
PO Box 493-1000
San José, 1000, Costa Rica
506.224.8282
uweinstok@niehauslaw.com
www.niehauslaw.com
CZECH REPUBLIC
Filip Winter
Winter & spol.
Prague 2, Vinohradska 12,
420.224.222.235
filip.winter@akwinter.cz
www.akwinter.cz
LIST OF CONTRIBUTORS
COLOMBIA
Ricardo Duarte Duarte
Duarte Garcia & Asociados – DG&A -
Carrera 14 No. 104 - 63
Bogota, D.C.
57.1.637.2500
rduarte@col-law.com
www.col-law.com
CROATIA
Mladen Vukmir
Vukmir & Associates
Pantovcak 35
Zagreb 10 000
385.1.376.0511
mladen.vukmir@vukmir.net
www.vukmir.net
DENMARK
Johan Løje
Hans Flensted - Jensen
Sandel, Løje & Wallberg
Frederiksgade 7, PO Box 9006
DK-1265 Copenhagen K
45.33.11.46.22
jl@slw.dk
www.slw.dk

FINLAND
Bernt Juthström, Mikael Segercrantz
& Jenni Jämsén
Roschier Holmberg Attorneys Ltd.
Keskuskatu 7 A
001 00 Helsinki
358.20.506.6000
bernt.juthstrom@roschier.com
mikael.segercrantz@roscheir.com
jenni.jamsen@roscheir.com
ww.roschier.com
HUNGARY
Matías Vallejos Meana
Salló Ügyvédi Iroda
Honvéd utca 38. IV./7.
1055 Budapest
36.1.331.0311
sallolaw@mail.datanet.hu
www.decapoa.com
ISRAEL
David Wolberg
Kuperschmit & Goldstein & Co.
12 Ha’adad Street
PO Box 1647
Even Yehuda 40500
972 9 899 7477
dwolberg@netvision.net.il
LIST OF CONTRIBUTORS
FRANCE
Michel Béjot & Barbara Doittau
Bernard Hertz Béjot
8, rue Murillo
75008 Paris
33.1.43.18.80.80
bejot2@aol.com
bdoittau@bhbfrance.com
www.bhbfrance.com
IRELAND
Duncan Grehan & Conor Griffin
Duncan Grehan & Partners Solicitors
Gainsboro House
24 Suffolk Street
Dublin 2
353.1.6779078
dgrehan@duncangrehan.com
cgriffin@duncangrehan.com
www.duncangrehan.com
ITALY
Felix Hofer & Maria Luisa Cassandro
Studio Legale Hofer Lösch Torricelli
9, via delle Mantellate, 50129
Florence
39.055.471882
fhofer@hltlaw.it
mlcassandro@hltlaw.it
www.hltlaw.it

JAPAN
Wilf Wakely
Aiba & Partners
4th Floor, Kamiyacho Sankei Building
7-2, Azabudai 1-chome, Minato-ku
Tokyo, 106-0041
81.3.3568.6810
wakely@aiba.chuo.tokyo.jp
MALAYSIA
Patrick Mirandah
Patrick Mirandah Co.
Suite 3b-19-3, Level 19
Block 3b, Plaza Sentral
Jalan Stesen Sentral 5
50470 Kuala Lumpur
pmirandah@mirandah.com
www.mirandah.com
PARAGUAY
Carlos Cazaña
Berkemeyer Attorneys & Counselors
Benjamin Constant
835 c/Ayolas - 4 th Floor
Asuncion 285, P.O. Box 2
595.21.446706
carlos.cazana@berke.com.py
www.berke.com.py
LIST OF CONTRIBUTORS
LUXEMBOURG
Laurent Fisch & Oliver Huth
Molitor Fisch & Associes
8, rue de Sainte - Zithe
BP 690
L-2016 Luxembourg
352.297.298
laurent.fisch@mfa.lu
oliver.huth@mfa.lu
www.mfa.lu
NEW ZEALAND
Monica Choy
Hesketh Henry
41 Shortland Street, Private Bag 92093, Auckland
1030, DX CP 24017
64. 9 375 8709
monica.choy@heskethhenry.co.nz
www.heskethhenry.co.nz
PERU
Jose Barreda
Barreda Moller
Avda. Angamos Oeste 1200
Lima 18
511.221.5715
mail@barreda.com.pe
www.barreda.com.pe

POLAND
Ewa Skrzydlo-Tefelska
Soltysiński, Kawecki & Szlezak Legal Advisors
Wawelska 15 B, 02-034
Warsaw
48.22.608.7000
ewa.tefelska@skslegal.pl
www.skslegal.pl
ROMANIA
Florentina Dumitrescu
Wood Lupascu Dumitrescu & Associates SCPA
ING Building
11-13 Soseaua Kiseleff
011342 Bucharest, Romania
40.21.222.8888
florentina.dumitrescu@wldlaw.ro
SPAIN
Gerhard W. Volz
Schiller Lexconsult Abogados
Henri Dunant 19,
28036 Madrid
34.914.179.780
gwvolz@schillerlexconsult.es
www.schillerlexconsult.com
LIST OF CONTRIBUTORS
PORTUGAL
César Bessa Monteiro
Abreu, Cardigos & Associados
Av. das Forças, 125, 12º Andar,
1600-079 Lisboa
351.21 723 18 00
cesar.b.monteiro@abreucardigos.com
www.abreucardigos.com
SOUTH AFRICA
Chris Job & Lindsey Kilmartin
Adams & Adams
PO Box 1014 Pretoria 0001
27.12.481.1500
ckj@adamsadams.co.za
lindsey@adamsadams.co.za
www.adamsadams.co.za
SWEDEN
Michael Plogell
Wistrand Advokatbyrå
Lilla Bommen 1,
SE-411 04 Goteburg
46.31.771.21.00
michael.plogell@wistrand.se
www.wistrand.se

SWITZERLAND
Peter Hofer
Frick, Hofer, Hunziker
Rechtsanwälte
Schifflände 5 (Hechtplatz)
PO Box 614
8024 Zurich
41.1.250.4370
peterhofer@rabenhaus.ch
www.rechtsanwaelte-rabenhaus.ch
UNITED KINGDOM
Brinsley Dresden
Lewis Silkin
12 Gough Square
London EC4A 3DW
20.7074.8069
brinsley.dresden@lewissilkin.com
www.lewissilkin.com
URUGUAY
Rafael Zerbino
Bado, Kuster, Zerbino & Rachetti
Paysandú 935, 3 rd Floor
Montevideo, 11100
5982.902.03.95
rzerbino@bkzr.com.uy
www.bkzr.com.uy
LIST OF CONTRIBUTORS
TURKEY
Mehmet Gun & Co.
Kore Sehitleri C ad. No. 32
Zincirlikuyu 80300
Istanbul
90.212.2 75.90.03
gun&co@mehmetgun.com.tr
www.mehmetgun.com.tr
UNITED STATES
Douglas J. Wood
Reed Smith LLP
599 Lexington Avenue
New York, NY 10022
212-549-0377
dwood@reedsmith.com
www.reedsmith.com
www.adlaw.com
VENEZUELA
Ricardo Alberto Antequerra
Estudio Antequerra Parilli & Rodríguez
Edificio Centro COINASA, PH-B
Avenida San Felipe
LA CASTELLANA
Caracas 1060 Venezuela
58212 2639944
ricardoalberto@antequera.com.ve
www.antequera.com.ve
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