Advertising law

Areas of expertise > Advertising law

Advertising law is a complex and changing law: the applicable legal provisions and legislation must be adapted to the evolution of advertising communication techniques (and in particular to communication with new media: social networks, advertising on cell phones, etc.).

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Regulation

The
regulation

The regulations applicable to advertising affect different areas of law: commercial law, consumer law, competition law, intellectual property law.

It is necessary to respect the legislation imposing the use of the French language, to be careful not to convey a message likely to mislead the consumer and not to risk the incrimination of misleading advertising, etc.

The rules relating to one-time promotions (discounts, liquidations, sales, private sales) are very specific, as are those relating to promotions in the context of contests or lotteries. For example, a ruling of the ECJ on April 23, 2009, condemned the prohibition of premium sales and sales by lots.

Finally, the promotion of alcoholic beverages and tobacco products is extremely limited, and these limitations may have indirect repercussions and affect the owners of trademarks bearing these signs and yet registered for goods and services that have no connection with alcoholic beverages and tobacco products.

It is necessary to respect the legislation imposing the use of the French language, to be careful not to convey a message likely to mislead the consumer and not to risk the incrimination of misleading advertising, etc.

The rules relating to one-off promotions (discounts, liquidations, sales, private sales) are very specific, as are those for promotions in the context of competitions or lotteries. For example, an ECJ ruling of 23 April 2009 condemned bans on premium sales and batch sales

Finally, the promotion of alcoholic beverages and tobacco products is extremely limited, and these limitations can have indirect repercussions and affect owners of trademarks bearing the said signs and yet registered for products and services that have no connection with alcoholic beverages and tobacco products.

Thus, for example, recently, the Paris Court of Appeal issued a ruling on October 26, 2011 (Pôle 5 ch. 1, RG n°09/23375) considering that:

“the registration of the trademark “Diptyque” by Hennessy [for alcoholic beverages] is likely to paralyze the use that the company Diptyque makes of its trademark since it can no longer fully exercise its property right on the sign Diptyque ; the result is a loss of effectiveness of the earlier trademark, constituting an infringement of the trademark rights enjoyed by Diptyque before the filing of the disputed trademark, which will consequently be cancelled pursuant to Article 711-4 of the Intellectual Property Code.

The Court of Appeal therefore considered that the DYPTIQUE company could no longer advertise and therefore promote its perfumes, candles and cosmetic products sold under its DYPTIQUE trademark because these advertisements could be analyzed as indirect advertisements in favor of the HENNESSY company’s alcoholic products.

The second trademark was therefore cancelled, as it prevented the first trademark from carrying out its activity through advertising.

Thus, for example, recently, the Paris Court of Appeal issued a ruling dated October 26, 2011 (Pôle 5 ch. 1, RG n°09/23375) considering that:

“the registration of the trademark “Diptyque” by Hennessy [pour des boissons alcoolisées] is likely to paralyze the use that Diptyque makes of its trademark since it can no longer fully exercise its right of ownership over the Diptyque sign; that the result is a loss of effectiveness of the earlier trademark constituting an infringement of the trademark rights enjoyed by Diptyque prior to the filing of the disputed trademark, which will consequently be annulled pursuant to Article 711-4 of the Intellectual Property Code.

The Court of Appeal therefore considered that the DYPTIQUE company could no longer advertise and therefore promote its perfumes, candles and cosmetic products sold under its DYPTIQUE brand because these advertisements could be analyzed as indirect advertisements in favor of the HENNESSY company’s alcoholic products.

The second trademark was therefore cancelled, as it prevented the first trademark from carrying out its activity by advertising.

Our services

Validation

We assist you in the validation of advertising campaigns and promotional operations (contests, lotteries) with regard to French and European legislation (in particular with regard to direct or indirect advertising for alcoholic beverages or tobacco) and the applicable professional rules (ARPP, etc.).

Assistance

We assist you in setting up partnerships, sponsoring contracts with personalities, and in creating and running information or promotional campaigns.

Drafting and negotiation

Drafting and negotiating contracts for the advertising sector such as:

contract for the commission of advertising works,
advertising agency contract,
advertising contract, competition rules.

Assistance and representation

We assist and represent you in all litigation relating to these sectors of activity (advertising use of a third party’s image or brand, deceptive commercial practices, comparative advertising, etc.).