- Comparative Advertising Regulation in Russia
- February 7, 2011 | Author: Tatiana Bicheva
- Law Firm: Lidings - Moscow Office
- Definition of the target group presents one of the main distinctive features of an advertisement. It means that it’s impossible to define individually a person to whom the information may concern.
If the information is addressed to an undefined circle of people, the way of distribution doesn’t matter - it can be distributed by catalogue, brochure, booklet or other printed material. For instance, if writing materials are distributed to undefined set of people, potential buyers, for free - at the street, by blanket mailing - is defined like an advertisement. Any person who received such information may use it. If a person is personified, and the information is of a targeted character, this would not be recognized as an advertisement.
Addressed dispatch of catalogues with goods’ lists, prices and delivery conditions, that contain forms of orders, is not recognized as an advertisement that is targeted at undefined group of people. However, it’s possible that the addressee (the receiver pointed out on the envelope) transfers the catalogue to the third parties. The Law on Advertising doesn’t’ provide the legal notion of “the undefined circle of people”, but it should be mentioned that the interpretation of the mentioned law shows that it may be defined as a group of people that the advertiser previously didn’t know. So even in an addressed dispatch (of course, if it’s not a personal order for goods) may be considered as an advertisement.
Moreover, sustaining arbitral practice has been formed on this issue. Thus, the decision of the Federal Arbitral Court of Moscow district - KA-A40/7346-05 of August 4, 2005 points out that dispatch of advertising materials on address base should be recognized as spreading information to an undefined circle of people.
Therefore, advertising does not exist when the information can be used only by the identified receiver and can’t be used by the third partied.
The main principle of the Federal Law on Advertising in general and the Article 5 of it in particular, is that advertisement should be credible and unfraudulent. Incredible and fraudulent publicity is prohibited.
The Article 5 of the Law on Advertising stipulates that advertising is considered to be fraudulent if it contains inaccurate comparisons of the goods being advertised with other similar goods that are manufactured by other producers and negotiated by other sellers.
Inaccurate comparison of advertised goods with other goods is also recognized as one of the forms of unfair competition under the Article 14 of the Law On Competition Protection. This form of fraudulent publicity may inflict harm both for consumer and competitor.
The usage of negative comparisons and alleging that other goods are of worse quality than goods being advertised, is also a form of fraudulent publicity (the section 20 of the Informational Letter of the Supreme Arbitration Court of the Russian Federation - 37 of December 25, 1998). Doubtful advertising based on similar comparisons that may mislead the consumer is recognized as fraudulent publicity as well.