Media and advertising law is always a cutthroat business and requires knowledge of the tricks of the trade.
This includes such matters as misleading advertising, comparative advertising, unnecessarily hurtful or disparaging advertising or other unlawful advertisements etc. In principle, comparing your product to a comparable product of your competitor is allowed only if it is done correctly, comprehensively, verifiably and not misleadingly. So you cannot compare apples and oranges and you cannot mislead the public either. This sounds logical, but how are the limits determined? For this, you need our specialist knowledge, experience and expertise.
See, for example, the article on comparative advertising written by Ernst-Jan Louwers, published in the Tijdschrift voor Marketing under the title Vergelijken mag maar geen appels met peren (‘Comparing is permitted, but not apples with oranges’). These types of cases often require that lawyers cooperate closely with communication advisers for determining the best strategy: an entirely legal approach or a more moderate approach to prevent playing into the hands of the competition.
And can you latch on to an event just like that, even though you have no official sponsor relationship with the organization? In other words: what are the restrictions on ambush marketing? Ernst-Jan Louwers and Peer Swinkels, from Bavaria, contributed to a master class under the title of ‘Ambush marketing, posing a risk or a challenge to sports sponsoring after 2008’ on 21 February 2008? Is it possible and acceptable to communicate through sports without having entered into a sponsor agreement?” See News.
In this context, it concerned, inter alia, the Leeuwenhose case, in which Ernst-Jan Louwers acted on behalf of Bavaria.
Bavaria ‘sampled’ and sold ‘Leeuwenhosen’, orange trousers in the shape of a Lederhose with a lion’s tale and the Bavaria logo, at training matches for the World Cup 2006. The KNVB had entered into an exclusive advertising agreement with Heineken (Amstel) for stadiums where matches organized by the KNVB were played. In addition, the KNVB had laid down specific stadium rules in standard conditions and the tickets referred to these standard conditions. For the first time before the training match between the Netherlands and Cameroon, Bavaria distributed about 15,000 Leeuwenhosen outside the stadium. The KNVB forced those who wore Leeuwenhosen to take these off at the gate and hand these over. If they refused, they were not allowed to attend the match. Bavaria and an aggrieved supporter who had to leave the stadium literally in his underpants claimed in preliminary relief proceedings that the KNVB should be ordered to grant the supporter wearing the Leeuwenhose admission to the stadium.
According to the court, Bavaria would act unlawfully if it would offer a large quantity of promotional articles within a radius of 10 kilometres from the stadium of the training match again without making a distinction between sampled and purchased articles. With respect to admission to the stadiums, the Court made a distinction between purchased and ‘sampled’ Leeuwenhosen (which distinction was welcome to Bavaria but impossible to put into practice): distributed (sampled) Leeuwenhosen did not have to be admitted but sold Leeuwenhosen did … This in fact meant that the supporters wearing Leeuwenhosen had to be granted admission and this is what happened.
All in all, Heineken blew the case up to such an extent that the Bavaria case received full media coverage not only in the Netherlands but also worldwide, including Australia. It is sometimes advisable to refrain from taking legal action and respond creatively to an advertising stunt by a competitor.
If you object to advertisements, you can go to the ordinary courts or the Dutch Advertising Code Committee. In principle, decisions rendered by the Advertising Code Committee are not enforceable, but in practice these are complied with.
Since early June 2009, the Advertising Code Committee has published a ‘pillory’ entitled ‘The Red Ear’ (in the ‘non-compliance’ section). It includes a list of advertisers who did not react to or who indicated that they would not comply with the decision rendered by the Advertising Code Committee or the Board of Appeal. This measure may give more weight to the decisions rendered by the Advertising Code Committee.
As an advertiser, you can arrange for the removal of your name from the register, provided that you indicate how you intend to comply with the decision after all. If your name is removed, the list mentions the date on which this was done and the manner in which the advertiser finally complied with the decision.
With respect to advertising as well, arrangements should be properly enshrined in tight contracts. For this purpose, too, you need the experience and expertise of the advertising world. This includes, for example, assessing and preparing marketing and advertising contracts, (online) advertising contracts, contracts for the design of packaging, sponsor and event contracts, arrangements on search engine optimization, concept development, television formats, artist contracts etc.