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Marketing and Advertising Law in a Process of Harmonization

Posted on 7 December 2017 | 4:41 am by LONDON ENTREPRENEURS NETWORK

Readers keen on marketing and advertising law, the harmonisation process and the relationship between advertising and IP law may be interested in the latest edition in the Modern Studies in European Law from Hart Publishing. The book, titled ‘Marketing and Advertising Law in a Process of Harmonisation’ is edited by Ulf Bernitz and Caroline Heide-Jørgensen and transpired following a conference titled: “A Common Law of Unfair Competition – Europeanization and Integration, From Harmonizing Misleading Advertising to Unfair Commercial Practices.” It brings together a number of prolific authors to discuss the various issues within the harmonisation process.

The introductory chapter explains that the EU Directive concerning unfair commercial practices (2005/29/EU) aimed to create uniform rules and develop the fairness of commercial practices for the protection of consumers. Traditionally, there has been minimal harmonisation in this area, however, the Directive changed this and set to implement full harmonisation. This book recognises the impact of the EU Directive on marketing and advertising law, particularly considering the harmonisation process.

The book is presented in four key parts across 12 chapters. The first part provides general perspectives and background on the harmonisation of EU Unfair Competition Law. In particular, the first part considers commercial expression in relation to freedom of speech and the distinction between the regulation of misleading advertising and the self-regulation of matters involving ethics, taste and decency.

The second part of the book analyses the relevant European legislation; the Unfair Commercial Practices Directive and the Comparative Advertising Directive are discussed across four chapters. The authors consider issues such as interpretation, incorporation and scope of the Directives. Particular attention is paid to how these issues such as the open interpretation and application of the Directives pose a challenge to successful harmonisation. This part of the book also considers the relevant soft law such as the International Chamber of Commerce (ICC) Code for Advertising and Marketing and the UCPD guidance.  

The third part focuses on enforcement issues. For example, chapter 9 considers the Norwegian experience of applying the UCP Directive, and in particular how the cases of children and surreptitious advertising illustrate the challenges of interpreting the Black List clauses.

Readers will likely find chapter 11 particularly interesting. This chapter addresses the question of how unfair competition law can complement intellectual property protection. The author discusses the relationship between unfair competition and intellectual property. For example, the General Provisions on Advertising and Marketing Communication Practice state that marketing communications should not mislead the consumer. The author argues that this mirrors the Paris Convention which includes all acts that create confusion. The chapter mainly focuses on trade mark law, it discusses the relationship between trade mark law and the Comparative Advertising Directive, particularly through considering the relevant CJEU case law.

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