In a recent development that will be
of interest to those PTMG members
that have consumer divisions, the
National Media Council (NMC) of the
United Arab Emirates (UAE) issued
Council Decision No. 35/2012 earlier
this year relating to the Criteria and
Content of Advertising (the Decision).
The National Media Council is an
independent federal level government
body with responsibility for
overseeing the development of the
media in the UAE. The remit includes
oversight of the advertising sector and
the Decision covers all advertising
content available in the UAE in any
form of media, regardless of whether
the content was created in the UAE
or not.
It is commonplace in the UAE for
companies in the consumer sector to
utilise advertising techniques to allude
to a competitor's product and the
superiority of the advertiser's
product. Such advertisements tend to
stop short of actually using the
competitor's trade mark and
therefore, these cases have been
traditionally difficult to action when
one company has felt their product
has been unfairly represented in the
comparison. Actions under the Trade
Mark Law are not possible in such
circumstances and rarely practical
under the Anti-Fraud and Deception
Law, the Consumer Protection Law
or the general provisions relating to
unfair competition in the Commercial
Transactions Law. On the face of it,
the Decision should allow action to
be taken against such advertising
techniques.
The Decision, amongst other things,
states:
- the misuse of the intellectual
property of another party is
prohibited;
- that advertisements should not
include false claims, exaggerate
facts, claim exclusivity, belittle
competitors nor do anything that
pertains to fraud and deception;
and
- that advertisements shall be true
and not exaggerated, and shall not
cause any confusion or be
misleading in any way, whether in
relation to names, products or any
other activities.
Sanctions that may be issued by the
NMC under the Decision include:
- issuing a warning;
- requiring the advertisement to be
stopped/withdrawn;
- payment of compensation for
damage caused;
- cancellation or suspension of the
license of a business that is in
violation
The sanctions are without prejudice
to the penalties that may be issued
under other laws and regulations
(such as the various health laws and
regulations that regulate
pharmaceutical advertising).
Notwithstanding this apparent
jurisdiction to issue independent
sanctions, to date in one complaint
that has so far been filed with it under
the Decision, the NMC has indicated
it would only issue sanctions under
the Decision, where another body
(either administrative or judicial)
indicates that there has been a
breach of a law. Whilst a judicial
authority could give a decision in
relation to the Decision, other
administrative authorities do not have
jurisdiction to do so. Therefore, in
practical terms in order to get an
order under the Decision (without
going to Court) a complainant would
need to use another law or regulation
to obtain a decision from another
administrative authority and then ask
the NMC to issue sanctions based on
that determination under this
Decision.
It is to be expected that there will be
some issues relating to how
regulations or laws will be
implemented in practice when first
issued. Notwithstanding this, we
recommend that both advertisers and
those who are targets of competitor
advertising claims watch
developments in this area closely.
Comparative Advertising in the
United Arab Emirates
Sara Holder, Chad Dowle Rouse & Co. International, UAE
2
Words from the
Chair
As I write this brief article for
LL&P, I am preparing to chair
the 87th PTMG Conference in
Vienna. It seems hardly any time
since we bade farewell from our
last meeting in Hamburg in the
Spring. In the meantime, I hope
you have all had a lovely summer
and found time to relax with
your friends and family.
For the forthcoming Conference
in Vienna, we have tried to put
the focus on attracting as many
attendees from industry as
possible, including by amending
our policy on fees. We will
certainly do the same for our
Spring 2014 Conference in
London.
I hope by now you have seen the
great programme we have
organised for you in Vienna and
are looking forward to the usual
interesting and informative
presentations and some lively
discussions, both during the
meeting and also at the social
functions.
I look forward to seeing many of
you very soon in Vienna. In the
meantime, I hope you all enjoy
the last few days of summer.
Sophie Bodet