C-381/05, De Landtsheer Emmanuel

A Belgian producer of beer launched a beer under the name “Malheur Brut Réserve”. The wording “BRUT RÉSERVE”, “La première bière BRUT au monde” (“The first BRUT beer in the world”), “Bière blonde à la méthode traditionnelle” (“Traditionally‑brewed light beer”) and “Reims-France” as well as a reference to the winegrowers of Reims and Épernay appeared inter alia on the bottle, on a leaflet attached to the bottle and on the cardboard packaging.
As could be expected, the Comite Interprofessionnel Du Vin De Champagne And Veuve Clicquot Ponsardin SA subsequently brought an action against L, seeking, in particular, a prohibition on the use of the wording set out above, which, it was claimed, was not only misleading but also amounted to comparative advertising. The referring Court submitted a series of questions on the interpretation of Directive 84/450, which, subject to certain conditions, permits comparative advertising.
The Court held that in order for there to be comparative advertising, it was sufficient for there to be a statement referring even by implication to a competitor or to the goods or services which he offered. The test was whether it identified, explicitly or by implication, a competitor of the advertiser or goods or services which the competitor offered (see also C-112/99,Toshiba Europe [2001] and C-44/01, Pippig Augenoptik [2003]).

It was for the national courts to determine whether an advertisement enabled consumers to identify, explicitly or by implication, one or more specific undertakings or the goods or services that they provided as actually referred to by the advertising.

When making that assessment, they must take into account the presumed expectations of an average consumer who was reasonably well informed and reasonably observant and circumspect. (see also C-356/04, Lidl Belgium [2006]).

The Court furthermore held that in order to determine whether there was a competitive relationship between the advertiser and the undertaking identified in the advertisement, it was necessary to consider

(1) the current state of the market and consumer habits and how they might evolve;

(2) the part of the Community territory in which the advertising was disseminated, without, however, excluding, where appropriate, the effects which the evolution of consumer habits seen in other Member States might have on the national market at issue, and

(3) the particular characteristics of the product which the advertiser sought to promote and the image which it wished to impart to it.

Text of Judgment