Retail chains on the warpath of comparative advertising

It is hard to find anyone who has not recently noticed the intensified phenomenon of aggressive advertising campaigns of two large retail chains present on the Polish market.

The advertising war attracts attention because advertising messages addressed to customers include direct references to the competitor. On billboards and in advertising leaflets one can find comparisons with competitor’s prices and direct information that the competition’s prices are higher. Such advertisements began to be placed on store shelves and even on receipts. Additionally, text messages campaigns are directed to the chain’s customers.

These are typical examples of comparative advertising, i.e. advertising allowing for direct or indirect recognition of a competitor or the goods or services offered by a competitor. This type of advertising is not prohibited in general. However, it may constitute an act of unfair competition if it is contrary to good practices.

The Act on combating unfair practices points out in Art. 16(3) situations in which comparative advertising is not deemed contrary to good practices. Therefore, it may be assumed that this provision specifies the conditions for the admissibility of comparative advertising, which is legal when:

• it is not misleading advertising,
• compares goods or services that meet the same needs or are intended for the same purposes in a reliable and verifiable manner on the basis of objective criteria,
• objectively compares one or more essential, characteristic, verifiable and typical features of these goods and services, which may also include price,
• oes not cause confusion on the market between the advertiser and his competitor, or between their goods or services, trademarks, designations of companies or other distinctive signs,
• does not disparage goods, services, activities, trademarks designations of companies or other distinctive signs, as well as circumstances relating to a competitor,
• in relation to goods with a protected geographical indication or protected designation of origin, it always refers to goods with the same indication,
• does not unfairly use the reputation of a trademark, business name or other distinguishing sign of a competitor or a protected geographical indication or protected designation of origin of competitive products,
• does not represent a good or service as an imitation or a passing off of a good or service bearing a protected trademark, a protected geographical indication or a protected designation of origin or other distinctive sign.

Among the range of advertising tricks used in the above-mentioned “war of brands”, the one raising most emotions was the slogan placed on billboards by one of the retail chains: “since 2002 X is cheaper than Y”.

The chain Y requested the Regional Court in Warsaw, XXII Intellectual Property Division to secure claims by injunctive relief to cease and remove the effects of an act of unfair competition involving the use of this advertising slogan. The injunction was granted in the decision of 24 February 2024 and consisted in the seizure – for the duration of the proceedings – of advertising materials belonging to the obligor, on which a specific advertising slogan is used, in particular posters presented in the content of the decision itself. Enforcement of the decision involves the seizure of advertising billboards by a court enforcement officer.

The main objection to the competitor’s advertising is the use of a slogan that misleads customers. In the main proceedings, the court will therefore assess whether an advertising slogan should be treated as a category of facts that can be verified in terms of their veracity or whether the boundaries of the slogan should be defined more broadly.

The price duel taking place in the commercial space has a legal impact and the assessment of the court hearing the case will be important for determining the limits of advertising campaigns based on comparative advertising in the future.

• Decision of the Regional Court in Warsaw of 24 February 2024, case no XXII GWo 94/24