advertising law

Areas of expertise >     advertising law

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

Regulations

The
regulations

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

It is necessary both to ensure compliance with 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 criminalization of misleading advertising, etc.

The rules relating to one-off promotions (reductions, liquidations, sales, private sales) are very specific, as are those for promotions in the context of contests or lotteries. For example, a judgment of the ECJ of April 23, 2009 condemned the prohibitions of sale with premiums and sale by lots

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

It is necessary both to ensure compliance with 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 criminalization of misleading advertising, etc.

The rules relating to one-off promotions (reductions, liquidations, sales, private sales) are very specific, as are those for promotions in the context of contests or lotteries. For example, a judgment of the ECJ of April 23, 2009 condemned the prohibitions of sale with premiums and sale by lots

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

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

"the filing of the 'Diptyque' trademark by the Hennessy company [for alcoholic beverages] is likely to paralyze the use that the Diptyque company makes of its trademark since it can no longer fully exercise its right of ownership over the Diptych sign; that the result is a loss of effectiveness of the earlier trademark constituting an infringement of the trademark rights enjoyed by the company Diptyque before the filing of the disputed trademark, which will consequently be canceled by application of 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 alcoholic products of the HENNESSY company.

The second brand was therefore cancelled, because it prevented the first brand from exercising its activity calmly by carrying out advertisements.

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

"the filing of the 'Diptyque' trademark by the Hennessy company [for alcoholic beverages] is likely to paralyze the use that the Diptyque company makes of its trademark since it can no longer fully exercise its right of ownership over the Diptych sign; that the result is a loss of effectiveness of the earlier trademark constituting an infringement of the trademark rights enjoyed by the company Diptyque before the filing of the disputed trademark, which will consequently be canceled by application of 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 alcoholic products of the HENNESSY company.

The second brand was therefore cancelled, because it prevented the first brand from exercising its activity calmly by carrying out advertisements.

Our services

Validation

We support 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 applicable professional rules (ARPP, etc).

Assistance

We assist you in setting up partnerships, sponsorship contracts with personalities, and in the creation and operation of information or promotional campaigns.

Drafting and negotiation

Drafting and negotiation of contracts for advertising stakeholders such as:
– order contract for advertising works,
– advertising consulting agency contract,
– advertising management contract, competition rules.

Assistance and representation

We assist and represent you in all disputes relating to these sectors of activity (advertising use of the image of a third party, or its brand, misleading commercial practices, comparative advertising, etc.).