New Approach to Comparative Advertising in Ukraine
DLA Piper, Kyiv, Ukraine,
Tue, Dec 17, 2019
On 11 December 2019, the Law of Ukraine “On Amendments to Some Legislative Acts of Ukraine (on the harmonization of legislation with the law of the European Union in the field of comparative advertising)” No. 286-IX (the Law) aimed at clarifying and supplementing the rules of the use of comparative advertising in Ukraine came into force.
The Law allows to use in comparative advertising images, references to the product, trademarks or other designations under which the compared product is manufactured, as well as company name of the competitor whose activities or goods are being compared. At that, it is prohibited to use in advertising the information which constitutes unfair business practice, leads to confusion of consumers or entails unfair competition.
According to the Law, comparative advertising is permitted if it meets the following requirements:
- it does not constitute an unfair business practice,
- it compares similar or alike goods meeting the same needs or having the same purpose or activities covered by the same area or type,
- it objectively compares essential, comparable and representative characteristics of similar or alike goods or activities which may influence consumer’s decision,
- it does not discredit or provide false information about the quality of similar or alike goods of other manufactures and sellers, does not discredit other persons’ activities or status, reputation of trademarks, company names or other competitors’ characteristics or indications of origin of goods,
- as regards goods with indications of origin, it provides comparison with goods of comparable indications of origin,
- it does not lead to confusion of advertiser and competitor, their goods, trademarks, company names and other designations,
- it does not imitate competitor’s goods protected by trademarks or company names.
Also, the Law introduces amendments to the Law of Ukraine “On Consumer Rights Protection” No. 1023-XII dated 12 May 1991 to expand on provisions defining and prohibiting unfair business practice.
Further, for the purposes of implementing the above regulation on comparative advertising, the Law introduces amendments to the Law of Ukraine ”On the Protection of Rights to Marks for Goods and Services” No. 3689-XII dated 15 December 1993. More specifically, with the Law becoming effective, trademark owners will not be able to prevent the use of their trademarks by third parties without their consent in comparative advertising, provided that such use is in line with the laws on advertising and on protection against unfair competition or if it cannot be qualified as an unfair business practice.
According to the legislation, responsibility for unlawful comparative advertising lies with an advertiser. More specifically, the Antimonopoly Committee of Ukraine may impose a fine amounting up to 5% of turnover of the advertiser (its group) for the preceding fiscal year.