Advertising the franchise in Italy: misleading and comparative advertising
Legislative Decree 145/2007 prohibits misleading advertising, i.e. advertising that misleads recipients or competitors, and undermines the economic behavior of the recipients, even if only potentially. Comparative advertising is considered lawful by Italian law, under some specific conditions.
1. Misleading advertising according to Italian Law
Article 2, lett. b) of the Legislative Decree 145/2007 prohibits misleading advertising, defined as “any advertising that, in any way, including its presentation, is likely to mislead individuals or legal entities to whom it is addressed or that it reaches and that , due to its deceptive nature, may affect their economic behavior, or that, for this reason is likely to harm a competitor “.
View the official Italian version of the Legislative Decree n. 145/2007. To receive an unofficial English translation of the Legislative Decree n. 145/2007, please contact us.
It is therefore considered as misleading the advertising message that, in any way, including its presentation (way in which the message is inserted in the newspaper or website, etc.), and independently of the intent of the operator (i.e. objectively), is suitable to:
- mislead recipients or those who reach (therefore also competitors);
- undermine the economic behavior of the recipients, even if only potentially (i.e. regardless of whether the message produces damage).
Pursuant to art. 3 of the Legislative Decree n. 145/2007, in evaluating the deceptive nature of an advertising message it is necessary to consider:
a) the characteristics of the goods or services (availability, nature, execution, composition, method and date of manufacture or performance, suitability for use, use, quantity, description, geographical or commercial origin, results that can be obtained with their use, results and basic characteristics of tests or checks carried out on goods or services);
b) the price or manner in which it is calculated and under the conditions under which the goods or services are supplied;
c) the category, qualifications and rights of the advertiser (identity, patrimony, capacity, intellectual and industrial property rights, any other right on the company’s intangible assets and the prizes or awards).
2. Comparative advertising according to Italian Law
Comparative advertising is a way of advertising communication with which a company promotes its goods or services by comparing them with those of competitors, identified generically or specifically. Comparative advertising can be:
- direct, when the competitors are recognizable or by express mention of their name or brand (e.g.: “The car X is more comfortable than Y and costs less“), or by indicating elements that make it unequivocally recognizable (e.g.: “There are bananas only with the stamp and there are healthy bananas like Paquita“).
- indirect, when the person who attributes to his product unique qualities implicitly affirms that these qualities are not owned by all the competing products (eg: “The only silent car like the night“).
The comparison can be expressed through words or images able to obtain the same result, often more effectively.
Comparative advertising is considered as lawful when:
- it is not misleading;
- compare goods or services that meet the same needs or propose the same objectives;
- objectively compares one or more essential, relevant, verifiable and representative characteristics, including the price, of such goods and services;
- does not create confusion on the market between professionals or between the advertising operator and a competitor or between the brands, the trade names, other distinctive signs, the goods or services of the advertiser and those of a competitor;
- does not cause discredit or denigration of brands, trade names, other distinguishing marks, assets, services, activities or position of a competitor;
- for products bearing the designation of origin, it refers in any case to products having the same name;
- does not unduly benefit from the reputation of the trademark, the trade name or other distinctive sign of a competitor or the designations of origin of competing products;
- does not present a good or service as imitation or counterfeiting of goods or services protected by a registered trademark or trade name.
Consequences of non compliance with the Italian Law on advertising might be quite severe for foreign franchisors. Therefore, careful planning and adequate legal counseling from a local law firm is highly recommended.
Avv. Valerio Pandolfini
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The information contained in this article is of a general nature and is not to be considered an exhaustive examination of the various issues, nor is it intended to express an opinion or provide legal advice. Specific legal advice must be provided with regard to individual cases.