15 nov. 2012

End of “You have won!” advertising, Purely Creative Ltd, C-428/11

The UK Office of Fair Trading accused 5 companies and 3 persons of using the false impression that I' summarise as “You have won” for the promotion of their businesses (§ 2). Paragraph 31 of Annex I to the Unfair Commercial Practices Directive 2005/29/EC bans the following commercial strategy:

Creating false impression that the consumer has already won […] a prize or other equivalent benefit, when in fact […] taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost.

However the ECJ went even further. It declared that this prohibition is of “absolute nature” (§ 34), which means that even if the trader proposes several options how to get the prize (a car), one of which is completely free (go to the factory and take it yourself), the presence of paid options (we will send it) breaches the Directive (§§ 38, 39). The judges replied that in such situations the offer should be limited to the geographic area around the factory (§ 40). The spirit of “objective of ensuring a high level of consumer protection” also confirmed this interpretation (§ 48).

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