GALA: Dutch court orders pan-European injunction based solely on unlawful comparative advertising

Dutch court orders pan-European injunction based solely on unlawful comparative advertising

Published by GALA in its newsletter GALA Gazette of 28 September, 2015

Exciting news: on 6 August 2015 the judge in preliminary relief proceedings of the Court of The Hague ordered a pan-European injunction based solely on misleading comparative advertising. This may be the first time that this has happened in Europe.

The case was between two competitors in the field of optical measuring instruments for professional use by ophthalmologists, optometrists and opticians: Oculus and I-Optics. Oculus contended that several of I-Optics’ advertisements were misleading. These advertisements were published on I-Optics’ .com website (which targets the international market) and had been used in material that is distributed at international trade fairs in which I-Optics participates. The software installed on the products concerned has considerable influence on their performance. I-Optics’ had inter alia compared its product with an Oculus product with obsolete software installed. The  court found that some of I-Optics’ comparative advertisements were indeed impermissible. Based on the unlawfulness of the advertisements, the court ordered a prohibition of the advertisements throughout Europe. The court reasoned that  the law regarding comparative advertising has been harmonized in Europe, and that as a consequence the advertisements must also be deemed impermissible in other European countries:

In view of the above, initially Oculus’ claims can be awarded to the extent that they are based on the impermissible character of Advertisements I, II, IIIa and IIIb. Given that the law regarding comparative advertising has been harmonized, it can be assumed that Advertisements I, II, IIIa and IIIb must also be deemed to be impermissible in other EU Member States. Thus, a prohibition throughout the entire European Union as claimed by Oculus can be awarded, as well.
(…)
The judge in interlocutory proceedings (…) orders I-Optics to refrain from Advertisements I, II, IIIa and IIIb within the European Union, determining that this order will commence one week after this judgment has been served.

The court also ordered a two month rectification in English on the homepage of I-Optics’ .com-website with the following text:

We have suggested that Cassini offers superior precision, trueness and accuracy compared to our closest competitors. By judgement of 6th August 2015 the District Court at The Hague has preliminarily ruled that we cannot substantiate that claim and has forbidden us to further make this claim.

Dutch courts were already rather (in)famous for assuming competence to order injunctive relief that has effect in other Member States of the European Union. The Oculus / I-Optics judgment brings that reputation to a whole new level in respect of advertising cases. When it comes to stopping unlawful international advertising campaigns across Europe, the Netherlands is now a one-stop-shop. Fast, relatively cheap and highly effective.

Daniël Haije and Ebba Hoogenraad