Promoting a brand under a false identity. The effects on traders and consumers
Are you the owner of a brand and you have realized that it is used to generate online traffic to other people?
Were you put in a situation where you wanted to buy online a product and the advertisement misled you? Have you clicked on a link and have been redirected to a completely different site?
Have you encountered unfair trade practices online, misleading links or advertisements?
Find out the legislation in such cases and how you can protect yourself!
The means of sale and promotion of products and services have diversified, and trade is not associated only with traditional commercial areas. Online commerce is becoming a widespread trend and with it the methods of misleading the online buyers an also growing and improving.
Why is it important to protect yourself against cases of unfair advertising?
The purpose of this article is to draw attention on the misuse of the trademark of a person (better known as a “brand”) which attracts negative consequences both on the brand owner and on the consumer.
Brand reputation is built over time and requires the investment of time and financial resources. If you are the owners of a brand that has became known online and appreciated by the general public, you are “sitting ducks” for those who want to “borrow” your brand reputation (obviously without your consent), to use it in promoting their own products and services.
A case of this kind, internationally known, is Interflora vs. Marks and Specncer’s (M&S). In brief, M&S used “interflora” as a keyword in indexing its own site in order to promote their flower delivery services, thus violating Interflora’s trademark right.
This form of “loan”, though illegal, is very common and very easy to put in practice.
The most common situations are those in which a person wants to access a particular site but is automatically redirected to a site that even if apparently is similar, in reality, it belongs to someone else. Also, another practice is indexing a site by using keywords or the name/defining elements of your brand.
Negative consequences in these situations don’t take long to surface. These practices lead to losing customers and money (for brand owners) or you can end up purchasing products and services different from those you wanted, which in most cases have a much lower quality standard than the one targeted by you (if you are consumers).
If you are a brand owner and find out that someone else is using your brand reputation for themselves, there are several actions that you can take to protect your rights and recover damages caused.
In case the amicable phase fails, you can refer to the competent law court that may impose sanctions starting from offenses and compensations up to criminal sanctions (imprisonment).
The applicable legislation in this situation, at a national level, is Law 84/1998 on trademarks and geographical indications, Law 11/1991 on combating unfair competition, Law 158/2008 concerning misleading and comparative advertising.
At the community (E.U.) level, your interests are protected by Directive 84/450/CEE, Directive 2005/29/CEE, Directive 2008/95/CE, as well as a number of regulations.
Although things seem simple, in order to identify the best way to follow for you in order to recover the damages and compel the other person stopping the use the trademark without right, you need a thorough study of each case conducted by an expert in the field, considering the fact that the legislation is quite vast and interpretable.
After the study is completed, the consultant will agree with you which is the purpose for suing the person who uses your trademark without right (you just want to recover your damage through a civil way or you also want punishment by fine/jail), will properly classify the illegal act (what article and from what law is applicable) and will determine the competent law court in where the consultant will represent your interests with professionalism.
If you are a consumer and you have been misled by this type of practices, sanctions are founded both on national and European legislation (relating to the protection of consumer rights).
Also, special institutions have been invested with powers of control and sanctioning those who violate laws regarding consumer rights, misinforming the latter, inducing them in error, omitting key information, influencing decisions made by a consumer.
Among these institutions, for example, we include the National Authority for Consumers Protection (NACP), national regulatory authorities, European consumer centers.
Of course, in order to recover the loss suffered because your rights were violated, as a consumer, you have to address the court.
The specialist’s advice proves important in these situations, giving you advice and guidelines so that your rights are respected and the prejudice recovered.