A television report can constitute an advertisement, says the Court of Milan

On 8 July, the Business Chamber of the Court of Milan issued a judgement (No. 9020/14) in a particular case of unlawful comparative advertisement. Specifically, the particularity of the case was that the applicant did not challenge an “ordinary” advertising message, but a television report transmitted within a television programme.

On 27 January 2011, during an episode of the television show “Occhio alla Spesa” broadcasted by RAI, a comparison was made between two kinds of “bresaola” (air-cured beef): a “punta d’anca bresaola” of the Valtellina region (enjoying a PGI) and a “sottofesa bresaola” (not enjoying any PGI). During this comparison, made with the intervention of an exponent of the Consortium for the Protection of the Name “Bresaola della Valtellina” (the “Consortium”), the “punta d’anca bresaola” was attributed to the producers of the Consortium, whereas the “sottofesa bresaola” was attributed to Salumificio Sosio s.r.l. (infra “Sosio”, in the past also a member of the Consortium) and this was done by showing, albeit for a short time, a label containing the trademarks “Sosio” and “Bresaola di Baita”, owned by Salumificio Sosio s.r.l.

Sosio then took legal action against the Consortium and RAI, evidently (based on the text of the decision) complaining that the transmission in question was not an informative television broadcast, but real comparative advertising, to be considered illegal because it did not objectively compare homogeneous goods as required by Legislative Decree 145/2007: in fact, the Consortium’s “punta d’anca bresaola”, of higher quality, was compared to Sosio’s “sottofesa bresaola”, of lower quality.

At the outcome of the trial, the judgment under review adopted Sosio’s arguments, observing that:
– “the television broadcast in question, presenting bresaolas of different manufacturers and encouraging the spectators to consume some of them, rather than others, certainly has an advertising effect and value”;
– “the comparative advertising in question is, likewise, surely unfair because it does not exhibit homogeneous products (that are derived from meats of the same quality and subjected to the same maturing)”;
– “of course, the defendant RAI, organiser of the broadcast and therefore responsible for the anonymity of presented products or the correct selection of the products to compare, must be held responsible for this misconduct”;
– “likewise, the defendant Consortium, which participated in the television broadcast with its own appointee, who made, with verbal expressions and gestures, the deceptive and denigrating comparison (and this, curiously, to the detriment of a person who is no longer a member of the Consortium) must be held responsible for the misconduct”.

On the basis of these considerations, the Court therefore inhibited the further circulation of the advertising in question, fixing € 50,000.00 of penalty for each violation of the prohibition. The Court also condemned the Consortium and RAI to pay € 50,000.00 as compensation for the damages, equitably liquidated “having regard for the possible number of viewers capable of noticing the plaintiff’s trademarks showed for a few seconds and to remember them negatively”. The Court further condemned the defendants to pay over € 25,000.00 for Sosio’s costs of proceedings. Additionally, the Court ordered the publication of the extract of the judgement on “Corriere della Sera” and “Salumi & Consumi”.

The judgement under review, as well as being interesting because it recognised the existence of unlawful comparative advertising in a context that is not openly commercial, is also significant from another point of view: indeed, it draws attention to the growing dispute between the Consortiums defending protected denominations, and independent entrepreneurs who produce outside of the Consortiums.

In fact, on one hand the Consortiums essentially declare a qualitative superiority of their products compared with those of independent entrepreneurs, somehow opposing the latters’; on the other hand, independent entrepreneurs claim the right to produce without the Consortiums’ disciplinary restrictions, relying on direct public opinion for the evaluation of the quality of their products. From a legal perspective, the dispute essentially results in trademarks, protected denominations and advertising disputes, and is therefore increasingly subject to rulings from our Business Chambers.