The Bulgarian Commission on Protection of the Competition (CPC) in the Decision 1132/31.10.2024 involving Walltopia AD and Inventix OOD recently provided again its interpretation on the definition of “misleading advertising”.
The key takeaways of this decision are:
- The information about a trader’s history and products offered on the market as shown on its corporate website may not be considered an advertisement;
- The key factor in determining whether an advertisement is present, is whether the communication highlights any properties or advantages of the products or services offered by a merchant. If a message merely introduces the merchant and lists products or services delivered/supplied by the merchant, the likelihood of it being classified as an advertisement is lower.
- On the other hand, if a publication specifies particular features or advantages of the merchant itself or of its products or services, thereby attracting the attention of potential customers, the risk of it being considered an advertisement—and thus potentially misleading if any information is false or misleading—increases significantly.
The main claim of Walltopia was that a publication on Inventix’s website about a climbing site project, in which both companies were involved amounted to an unfair competition practice. The main argument here was that although Inventix OOD had constructed only two of the climbing walls, the publication on its website created the impression that the Defendant completed the entire Project.
The CPC ruled that no infringement occurred, primarily because Inventix had accurately disclosed that it had developed and constructed only 528 m² of the total 3,000 m² climbing walls area. The CPC noted that, given the specific nature of Inventix`s services, the information provided on the website was sufficient for the primary audience, to understand that Inventix was responsible only for a part of the Project. Furthermore, the CPC reaffirmed its established position that misleading advertisement can be identified only if the following elements are cumulatively present: (i) the claimant and the defendant are competitors in the relevant market; (ii) there is an advertisement disseminated over a certain period; (iii) the advertisement contains misleading information, presented in any form, i.e., it includes information that is false or misrepresents the truth; (iv) the advertisement actually misleads or is likely to mislead the persons to whom it is addressed, thereby influencing their economic behavior; and (v) it causes or is likely to cause harm to a competitor. In this case, the CPC ruled that there was no advertisement, and therefore, the other conditions were also not met.