Hungary: Simply The Best: The Risks In Stating Your Product Is Superior To All Others

The author discusses some important aspects when using superiority claims in advertising and potential sanctions for non-compliance.

Why do companies like to make superiority claims?

Companies tend to advertise with the catchiest slogans possible, which is perfectly understandable. And the non plus ultra slogan is a clear claim of the no. 1 market position. Since such claims may have a big impact on the volumes sold, their use, and sanctions for their illegal use, must be regulated carefully. Otherwise, false advertising may be worth it if the commercial benefits (eg, increased sales volumes) outweigh the sanctions.

Unlawful advertisements – misleading advertisements

Commercials are misleading if they cause or may cause the consumers to make a business decision they would not have mad, provided that (i) the company has not hidden relevant information from them about attributes of the product advertised and (ii) the company has not provided such information in a misleading or unclear way.

Some important aspects when making superiority claims in an advertisement

Requirement of an objective and independent survey

A superiority claim must be based on an objective and independent survey conducted by a professional measurement enterprise. Since the addressees of the advertisement are supposed to believe in the correctness of the claim, there must be an objective and independent survey the statements of which are reflected in the claim in a non-misleading way. The survey must extend to all competitive products or to all competitors[1]; otherwise, the superiority claim qualifies as unlawful.

Subjectivity of the superiority claim

If the superiority claim declares a slogan that cannot be proven via an objective and independent survey (eg, "our radio station broadcasts the best hits all day long"), then it is impossible to prove its misleading character. Therefore, such an image campaign does not raise legal concerns at first sight[2].

Application of limitations or qualifications marked with an asterisks (*) attached to the main slogan

Using small letters attached to the main slogan and marked with an asterisk (footnotes) is not unlawful. The main message and the additional message marked with an asterisk may, however, not vary substantially from each other[3]. This requirement is not fulfilled if, for example, a TV channel claims in the main slogan the largest number of viewers based on a survey, but the limitations[4] on this claim are included only in small letters marked with an asterisk[5]. The TV channel should have included this information in the main slogan, and fines have been imposed in such cases.

No voice-over of the wording marked with an asterisk in a TV spot

Another risk may be a TV spot in which the advertisement contains small letters marked with an asterisk on the screen but no voice over connects to the message. This corresponds to the special attributes of a TV spot: the viewer has time only for a quick glance at the message, and it is assumed that the additional text marked with the asterisk will not get through to the viewer. With printed advertisements, the reader can focus on the message for a longer time.

Misleading statement of "the most popular" product

An undertaking may not claim that its product is "the most popular" on the market if the survey shows superiority only in terms of sales value but not in terms of sales volume. This might occur even if less sales volume results in bigger sales value because of the high price of the product promoted as "the most popular" on the market.

Legal sanctions for infringement

An unlawful advertisement may be challenged by the Hungarian Competition Authority (Gazdasági Versenyhivatal; GVH) if the commercial practice in question can materially affect the competition. This is given if, among others, the commercial is broadcasted via a nationwide TV channel or is published in a nationwide newspaper distributed in at least three counties of Hungary. If declaring the infringement, the GVH may prohibit the infringing advertising practice and impose a fine, which may reach 10% of the company's net turnover in the last financial year.

Summary

The above are some aspects to consider when making superiority claims in advertisements, but the list is not exhaustive. The applicability of such claims depends on the facts and the proposed advertisement campaign.

Quote: Since such claims may have a big impact on the volumes sold, their use and sanctions for their illegal use must be regulated carefully.

Footnotes

[1] See also decision of the Hungarian Competition Authority Nr. Vj-85/2011.

[2] See also decision of the Hungarian Competition Authority Nr. Vj-15/2005.

[3]See also decision of the Hungarian Competition Authority Nr. Vj-86/2007.

[4]The name of the organisation that prepared the survey and the fact that the claim only refers to viewers between 18-49 years and to prime time.

[5]Decision of the Hungarian Competition Authority Nr. Vj-63/2011.

This article was originally published in the schoenherr roadmap`14 - if you would like to receive a complimentary copy of this publication, please visit: pr.schoenherr.eu/roadmap.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions