A manufacturer of toothpaste was legally entitled to market its product as being recommended by most dentists worldwide

Date 6 dec. 2010

 

On 29 October 2010, the Copenhagen Maritime and Commercial Court ruled in a case where a manufacturer of toothpaste (”Part A”) had claimed that a competing manufacturer of toothpaste (”Part B”) had violated the provisions of the Danish Marketing Practices Act by having marketed its toothpaste as being recommended by most dentists worldwide, among other things.

 

The court did not find that the statement was comparative in relation to one or more identifiable products, just as the court did not find that the statement was misleading or imperfect. Judgement was given in favour of Part B.


The case in brief

The case concerned a number of promotion activities in Denmark in which Part B had stated that Part B’s products was recommended by most dentists worldwide. Furthermore, Part B had marketed a specific product as being ”1 solution for 7 dental problems”.


Among other places, the statements were given in a commercial in which a female, Danish speaking dentist talked about sensitive teeth and relief hereof, and in this connection, she recommended the use of Part B’s products. At the end of the commercial, a male voice stated that Part B’s product was recommended by most dentists worldwide.


The statement was based on an enquiry made amongst 1000 dentists in 34 countries at 6 continents, including 12 European countries, but exclusive of Denmark. The conclusion was that Part B’s product was the toothpaste brand mostly recommended by dentists.


It was undisputed that Part B could be regarded as recommended by most dentists worldwide, based on the enquiry.


In a similar enquiry which was only conducted in Denmark, the conclusion was, however, that out of 10 toothpaste brands, Part A’s products were recommended by 80% of the Danish dental clinics whereas 20% recommended Part B’s product.


As regards Part B’s commercial containing the statement ”1 solution for 7 dental problems”, it was agreed that Part B had documentary proof of the product’s effect on the 7 specific problems.


During the case, Part A maintained that Part A’s products were recommended by most dentists in Denmark, and that Part B’s marketing was therefore misleading, since an ordinary consumer would get the idea from the commercial that the dentists’ recommendation also included Denmark.


Moreover, Part A maintained that the commercial in question was comparative and contained an indirect reference to Part A’s product, as Part A and B jointly controlled 80% of the toothpaste market.


Concerning the statement ”1 solution for 7 dental problems”, Part A maintained that the consumer would regard the product as a final relief for the problems mentioned.


The legal basis

The Danish Marketing Practices Act contains the overall and general guidelines for how business operators may market themselves in relation to consumers and in relation to competitors.


Section 1 of the Marketing Practices Act, which is the omnibus clause of the law, states that business operators must display good marketing practice in consideration of the consumer, business operators and common public interests. The purpose of the provision is to ensure that consumers are not deceived in ordinary sales, that the business operators follow certain guidelines for fair and honest marketing behaviour and to generally protect the basic values of the public.


The explicit prohibition against deceptive marketing may be found in Section 3 of the Marketing Practices Act which is an implementation of Counsil Directive 05/20 on unfair market practice. Pursuant to the provision, it is prohibited for business operators to use misleading statements either by saying something untrue or by keeping relevant information or circumstances secret and consequently give the consumer a wrong idea of the marketed product. The prohibition against giving misleading information is supplementet by the requirement in Section 3(3) saying that one must be able to substantiate statements on factual matters.


Furthermore, Section 5 of the Marketing Practices Act contains a prohibition against comparative commercials, unless the comparative commercial complies with a number of specific terms, such as not being misleading, not giving rise to confusion, not disparaging competitors’ goods, being objective and including specific, relevant and ascertainable properties.


Violations of the provisions of the Marketing Practices Act may be met by prohibition, just as the one suffering a loss as a consequence of a certain unlawful behaviour may be granted compensation.


The decision of the Copenhagen Maritime and Commercial Court

Regardless of the fact that the Danish market was dominated by Part A and Part B, the court did not find that Part B referred to one or more identifiable products by stating that it was recommended by most dentists worldwide. Based on this, the commercial in question was not comparable, cf. Section 5 of the Marketing Practices Act.


Moreover, the Maritime and Commercial Court based its decision on the opinion that the statement saying that Part B’s product was recommended by most dentists worldwide was objectively correct. A majority of the court’s judges did not find that the statement concerned Denmark, but the whole world, and there was no basis for concluding that the consumer would conceive of the statement as concerning Denmark. For these reasons, Part B was acquitted of the claim on misleading and/or imperfect marketing.


As regards the statement saying that Part B’s product was the solution to 7 problems, the court found that a natural reading of the add gives the impression that the product is fit to meet the 7 problems, but not to solve them permanently. This statement could therefore not be regarded as being misleading and/or defective.


Judgement was given in favour of Part B.


Our comments on the judgment

It was formerly assumed that comparative commercials were a condemnable way to advertise which should be opposed. However, the development of the law has changed its position on this and it is now generally accepted that comparative advertising is an effective way to advertise which has a high information value for the consumer and leads to enhanced transparency in the market.


However, comparative advertising must be used in the right way and at the use of comparisons it must be considered that two or more services/products are only seldom directly comparable, that comparisons may be made in many different ways and that test results may often be presented and interpreted differently.


In order for advertising to be considered comparative in the sense of the Marketing Practices Act, a comparison must exist and it must be possible to identify the products which the product is compared to.


In the present case, the court found that the commercial in question was not comparative in that the product was not compared to a limited and identifiable group of competitors.


At the same time, the court did not find that the statements made in the commercial were misleading or defective as they were substantiated by sufficient research and documentation.


The judgment underlines that advertising which reduces the time and efforts that the consumer must spend investigating the market must be considered useful, provided they are substantiated and that the content may be documented.



If you have questions or need further information on the judgment, please contact Attorney Dan Moalem (dmo@mwblaw.dk) or Attorney Pernille Nørkær (pno@mwblaw.dk).


The above does not constitute legal counselling and Moalem Weitemeyer Bendtsen does not warrant the accuracy of the information. With the above text, Moalem Weitemeyer Bendtsen has not assumed responsibility of any kind as a consequence of a reader’s use of the above as a basis for decisions or considerations