§2.8.3 Confusing marketing

Article 6(2)(a) of the UCPD addresses confusing marketing. Article 6(2)(a): A commercial practice shall also be regarded as misleading if, in its factual context, taking account of all its features and circumstances, it causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise, and it involves: (a) any marketing of a product, including comparative advertising, which creates confusion with any products, trademarks, trade names or other distinguishing marks of a competitor; For example: — A national court considered that sending out invoices that mimic another trader’s branding (its name, marks and invoice design) and creating the impression that services were rendered by this other trader is an unfair commercial practice. This was also contrary to No 21 of Annex I to the UCPD (including in marketing material an invoice or similar document seeking payment which gives the consumer the impression that they have already ordered the marketed product when they have not) (173). — The same court also considered the use of the indications ‘Taxi’ and ‘Taxi Gothenburg’, both in a yellow design on a taxi vehicle, to constitute comparative advertising and create confusion with the distinguishing marks of a competitor. This was because another trader had performed taxi services in the Gothenburg area since 1922 using the words ‘Taxi Gothenburg’ and the colour yellow as its trademarks (174). A practice which raises issues of compatibility with this provision is ‘copycat packaging’, which can occur in the offline and online sales channels. This refers to the practice of designing the packaging of a product (or its ‘trade dress’) to give it the general ‘look and feel’ of a competing well-known brand. Copycat packaging is distinct from counterfeiting as normally it does not involve copying trademarks. The risk posed by copycat packaging is consumer confusion and, consequently, the distortion of their commercial behaviour. Consumer deception caused by copycat packaging can take a number of forms: — Outright confusion – the consumer buys the copycat product having mistaken it for the brand; — Deception over origin – the consumer recognises the copycat product is different but believes, due to the similar packaging, that it is made by the same manufacturer; — Deception over quality or nature – again, consumers recognise the copycat is different but believe, due to the similar packaging, that the quality is the same or closer to that of the copied product. The similar packaging suggests to consumers that the quality or nature of the copycat product is comparable to the quality or nature of the brand in question or at least that it is more comparable than they might otherwise assume. As such, similar packaging gives the impression to consumers that the price alone is the only term of comparison between the products (rather than the combination of price and quality). For example: A trader names or brands its new sunglasses so as to very closely resemble the name or brand of a competitor’s sunglasses. This practice is likely to be in breach of Article 6(2) of the UCPD if the similarity is close enough to confuse the average consumer, making them more likely to opt for the new sunglasses when, without such confusion, they otherwise would not have done so. Annex I to the UCPD prohibits in all circumstances some specific commercial practices that involve confusing marketing in relation to trade marks, brands and related features: No 3 of ANNEX I Displaying a trust mark, quality mark or equivalent without having obtained the necessary authorisation. No 4 of ANNEX I Claiming that traders (including their commercial practices) or products have been approved, endorsed or authorised by a public or private body when they have not been or making such a claim without complying with the terms of the approval, endorsement or authorisation. No 13 of ANNEX I Promoting a product similar to a product made by a particular manufacturer in such a manner as to deliberately mislead the consumer into believing that the product is made by that same manufacturer when it is not. A practice that may mislead consumers is the sale by traders or online marketplaces of brand names as keywords if this creates confusion as regards the identity of the trader actually offering the product. The UCPD, in particular Articles 6(1)(a) and 6(2)(a), will come into play if the results displayed are likely to deceive consumers as to the nature of the product or create confusion between products, trade marks, trade names or other distinguishing marks of competitors. Companies using trademarked brand keywords to sell counterfeited products could potentially be found in breach of point No 9 of Annex I to the UCPD.

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Source: EUR-Lex (Cellar) · retrieved 2026-09-07