De Landtsheer Emmanuel v Comité Interprofessionnel du Vin de Champagne
Reference: Case C-381/05
Court: European Court of Justice
Judge: Jann, President, Cunha Rodrigues (Rapporteur), Schiemann, Ilešiè and Levits, Judges
Date of judgment: 19 Apr 2007
Summary: Comparative advertising – Identifying a competitor or the goods or services offered by a competitor – Goods or services satisfying the same needs or with the same purpose – Reference to designations of origin
DLE produced the premium brand Malheur beer. In 2001 it launched ‘Malheur Brut Réserve’, a beer made by the production method for sparkling wine. The wording ‘BRUT RÉSERVE’, ‘La première bière BRUT au monde’ (‘The first BRUT beer in the world’), ‘Bière blonde à la méthode traditionnelle’ (‘Traditionally‑brewed light beer’) and ‘Reims-France’ as well as a reference to the winegrowers of Reims and Épernay appeared on the bottle, on a leaflet attached to the bottle and on the cardboard packaging. Launching the product, DLE used the expression ‘Champagnebier’ to make the point that it was a beer made according to the ‘méthode champenoise’ (champagne method), although it later withdrew this use.
CIVC, the organisation of manufactures of certain expensive French sparkling wines sued DLE on the basis that the use of these terms was misleading and did not constitute lawful comparative advertising. The Brussels Court of Appeal referred aspects of the case to the ECJ.
(1) Does the definition of comparative advertising include references to a type of product, so that it refers to all undertakings offering that product?
(2) What factors were relevant in determining whether there was a competitive relationship between the producer and other undertakings?
(3) Was comparative advertising that identified a type of product but not a competitor or competitor’s goods permitted?
(4) Was comparative advertising that involved comparison of a product without designation of origin with products with designation of origin permitted?
(1) A reference in an advertisement to a type of product can be considered to be comparative advertising where it is possible to identify an undertaking or the goods that it offers as being actually referred to by the advertisement. That a number of competitors or their goods or services may be identified as being referred to is irrelevant to recognising the comparative nature of the advertising.
(2) The issue of a competitive relationship requires consideration of the current state of the market, consumer habits, the geographical extent of the advertising, and the promoted characteristics and image of the product.
(3) Advertising which refers to a type of product without thereby identifying a competitor or the goods which it offers is not impermissible.
(4) For products without designation of origin, any comparison which relates to products with designation of origin is not impermissible.
Advertisers cannot escape the requirements of the Comparative Advertising Directive simply by referring to a type of product rather than any specific competitor or product, if the reference to that type of product could still be understood by consumers to be an implicit reference to one or more competitors. However, reference to types of products may be considered not to be so understood and so will not be considered comparative advertising. In what circumstances consumers will understand such references to have been made is sure to be the subject of further litigation.