A commission given to a professional agency for preparing an advertisement does not absolve an entrepreneur from responsibility for an act of unfair competition

judgment of the Supreme Court of 9 April 2015, file reference II CSK 338/14

The proceedings concerned a claim for the competing entrepreneur to stop infringing the right to the Plaintiff’s company name and an act of unfair competition characterized by the use of unlawful advertising and to heal the infringement by withdrawing the advertisement and publishing a suitable statement on the Internet.

The advertisement in the form of a sponsored link in the internet browser was created by a professional advertising agency with whom the Defendant had concluded an advertising services agreement. In the headline of the advertisement, there was the Plaintiff’s company name and below the address of the Defendant’s website and the notice “V. – world leader (…) Please see our offer!”.

The Defendant argued that he had given no instructions to the agency as to the way of formulating the content of the advertisement or key words to be used, and the more so had not instructed it to conduct the campaign in an aggressive way jeopardizing interests of another company. And so, he should not be held responsible for somebody else’s conduct.

The Supreme Court noted that the entity promoting its activities by means of unfair advertising may not set itself free from responsibility for such an act of unfair competition by concluding an agreement on preparing an advertisement with the company who professionally is engaged in such activity.

In the opinion of the Court, it is also proved by the content of article 17 of the act on combating unfair competition saying that within the meaning of article 16 thereof also an advertising agency is committing an act of unfair competition in respect of advertising. It clearly shows that for an act of unfair competition both the author of an advertisement and the advertiser are responsible.

Moreover, it can by no means be acknowledged that publication of an advertisement is “a somebody else’s act” since it takes place in the interest of an advertiser. Therefore, it is a form of the use of advertising by an advertiser and is his own act also when technically publication of an advertisement is handled by another entity.