Spain: Appeal Decision In The Procter & Gamble vs. Energizer Group Case Over The Gillette Slogans

The Provincial Court of Madrid recently issued its appeal decision in the dispute originated from the slogans used by P&G in advertising the Gillette's razor blades.

Specifically, Energizer Group Spain, S.A exercised two negative declaratory actions regarding an advertising of rechargeable razors that was commercializing and asked that the Court declared that the claims "El mejor afeitado para tu piel¹" and "Afeita mejor que Mach 3²" included in the advertising did not constitute unfair competition.

Additionally, Energizer requested as well that the Court declared as unfair P&G's advertising claim "El cartucho de hojillas Gillette es el mejor de todos los tiempos³" being a deceptive advertising act.

Procter alleged that Energizer's claims were misleading advertising with exclusionary tone as well as a prohibited comparative publicity. In addition, P&G argued that its ad claim was almost imperceptible for the general public being hidden in a specific section of their web.

The mercantile Court considered that both Energizer's and P&G ad claims were deceptive⁴ or an unlawful comparative advertising⁵.

The Provincial Court of Madrid's appeal decision⁶, however, determined that only the claim "Afeita mejor que Mach 3⁷" constituted a prohibited comparative publicity while the other two claims did not infringe the regulations.

In examining Energizing's ads the Court considered that "El mejor afeitado para tu piel" was a simple advertising exaggeration, as a generic praise and therefore, it was not objectively apt to generate an unfair deception or to be an exclusionary advertising.

In this particular point , perhaps the interpretation of the slogan as advertising exaggeration is questionable since the slogan per se implies that there is a specific and objective advantage for the consumer's skin.

As far as the allegation "Afeita mejor de Mach3" is concerned, the Court concluded that it was an illicit comparative advertising, since the characteristics of the comparison were not disclosed and therefore no objective basis for the claim were shown.

In this respect, for an exclusionary ad to be lawful it should reveal a position of pre-eminence or supremacy in the market through specific and verifiable data, that the recipients recognize and value as information.

On the other hand, P&G ad "El cartucho de hojillas de Gillette en el mejor de todos los tiempos" was not considered to be exclusionary advertising since it contained a purely subjective and estimative message and therefore, it was lawful.

From this analysis what it is blatant is that the line between exclusionary advertising and advertising exaggeration is not at all clear.

Footnotes

1 The best shave for your skin

2 Shaves better than Mach 3

3 The Gillette razor blades cartridge is the best of all times

4 The slogans "El mejor afeitado para tu piel" and "El cartucho de hojillas de Gillette en el mejor de todos los tiempos"

5 "Afeita mejor que Mach3"

6 Nov. 17th, 2017

7 Shaves better than Mach 3

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