Is it Safe to Use Comparative Advertising in Poland?

In Poland, as in other EU member states, comparative advertising is permitted, subject to the rules provided under the Unfair Competition Act. A comparative advertisement must meet eight criteria in order to be considered compliant with honest trade practices (and therefore allowed). A comparative advertising must: not be misleading; compare (objectively and in a verifiable manner) only the products and services fulfilling the same needs or intended for the same purpose; compare one or more material, characteristic, verifiable and typical features; not create confusion in the market (as far as the compared products, trader or trademarks are concerned); not disparage competitor’s products, distinguishing marks, trademarks, names or competitor’s business; in respect of products protected by a geographical name of origin, relate to products bearing the same distinguishing marks; not exploit the reputation of distinguishing marks of the competitor in an unjustified manner; and not present a product as an imitation or replica of products bearing a protected trademark or trade name.

If the comparative advertisement relates to special offers, the terms of such special offer must be clearly communicated (including applicable dates).

Comparative advertising is not often used in Poland. As a result, courts did not have many opportunities to interpret the rules governing comparative advertising.

In one of the few recent judgments concerning comparative advertising, the Polish Supreme Court adopted a standpoint on objectivity of comparative advertising. The incriminated advertising materials compared claimant’s and defendant’s prices at a certain date. As a result, the claimant lowered products’ prices and claimed that the advertising materials were obsolete and thus, that the comparative advertising was biased. The Supreme Court ruled that comparative advertising does not lack objectivity in case the prices of products refer to certain dates, especially if consumers are clearly informed about the dates when particular prices were applied. Moreover, the advertising did not lack objectivity, because the claimant’s prices did not change until the date of commencement of the defendant’s advertising campaign, and they were lowered only when the release of comparative advertising started. The judgment confirmed the rule that the provisions on comparative advertising should be interpreted in favor of the entity whose prices are compared with prices of another entrepreneur.

Finally, Polish self-regulation body, Union of Associations Advertising Council determined conditions of admissibility and the ethical requirements applicable to comparative advertising in the Code of Ethics in Advertising. According to the said Code, comparative advertising is acceptable if: it serves the purpose of intensifying competition and public information but it should not mislead the consumers, all references in advertising comparing competing products are presented methodologically correctly, including but not limited to information on products, commercial offers, and data, the compared goods are satisfying the same demands or are manufactured for the same purpose, ads compare one or more characteristics which are verifiable (price may be one of such characteristics), comparative advertising does not mislead the consumers with respect to the goods offered, trademarks, trade names or other distinguishing elements, comparative advertising does not use the full or abbreviated corporate name, name, graphic symbol name or other marks legally belonging to another entity, and does not use the good name of such an entity, in an unjustified manner inconsistent with the provisions of the Code, comparative advertising does not discredit or humiliate the competitor and competitor-related circumstances, by presenting the competitor or his product in an unfavorable way.

In its case law the Polish Committee of Ethics in Advertising is quite liberal in assessment of comparative advertising. In case when a particular competitor of the advertiser can’t be identified, there is no comparative advertising. As a result, if an ad employs expressions, like: “no. 1 in Poland”, “in comparison with the competition they are excellent” or “we do everything more accurately”, the Committee does not consider such advertising as comparative advertising. However, using the distinctive colors of competitors, allowing to identify them, was considered as illegal comparative advertising.

To sum up, the approach of Polish courts and self-regulation to comparative advertising is rather liberal. Despite the above, comparative advertising is still not popular in Poland.