Unfair Commercial Practices Directive sets out clearer rules for mark owners

The deadline for implementing the EU Directive on Unfair Business-to-Consumer Commercial Practices has now expired. In Denmark, the directive is implemented by a regulation to the Marketing Act, which sets out what practices are always considered unfair in relation to consumers.

Although the directive does not entail any changes to the act’s provisions on fair commercial practices (Section 1) and misleading commercial practices (Section 3), it remains an important step towards harmonising marketing law with the European Union. It is also of particular significance to trademark owners, as most counterfeit cases are run with reference to the Marketing Act as well as the Trademark Act.

The considerable differences in the laws on unfair commercial practices in different member states has resulted in increased costs to Danish companies and trademark owners that have engaged in cross-border marketing and other promotional activities within the internal market. These differences have also meant that consumers are less certain about their rights, thereby undermining confidence in the internal market.

The directive’s aim is to remove such differences by fully harmonising the law on unfair commercial practices and introducing a uniformly high level of consumer protection. For instance, the directive introduces a general prohibition on unfair commercial practices that are likely to materially disadvantage the average consumer. This is complemented by special provisions on misleading and aggressive marketing, as well as a blacklist of marketing practices that are always considered unfair in relation to consumers. As a starting point, the directive establishes that other marketing practices must be assessed in view of a reasonably well-informed, observant and circumspect consumer.

This definition of the consumer necessarily depends on a court’s interpretation. However, it is possible that resulting case law could lead to some adjustment to Danish practice concerning the law on fair commercial practices, especially where this concerns trademarks.