The court dismissed Heineken’s claim, finding that the advertising of the Spanish brand defended by ELZABURU was not misleading and did not constitute unfair competition.

Judgment no. 9/2021, of 18 January 2021, by Section 28 of the Provincial Appellate Court of Madrid upheld the dismissal of the unfair competition complaint lodged by Heineken against its competitor Mahou in relation to the advertising for the launch of Mahou Cinco Estrellas Radler in the summer of 2018.

The advertisements in that campaign launching the new product included the phrases “La primera Radler Cinco Estrellas” and “La primera Radler Cinco Estrellas con zumo natural de limón”, together with the image of the bottle or can of the beer in question.

Anuncia Radler Cinco Estrellas, Mahou

 

In its complaint, Heineken argued that the words “la primera” [“the first”] within the phrase could only be interpreted in two ways: in a chronological sense, as the first “Radler” [shandy] type beer to launch in the marketplace, or in the sense of superior quality, with respect to the rest of the “Radler” type beers. Given that, according to Heineken, neither interpretation was accurate, it would constitute misleading advertising, as prohibited under Articles 5 and 7 of the Unfair Competition Act.

However, the message conveyed by the disputed advertising was different to the only two interpretations put forward by the complainant. The prominent image of the Mahou beer bottle or can, with its famous Mahou Cinco Estrellas trademark on the front, informed the consumer targeted by the advertisement that it was the first ever “Radler” type beer or beer with lemon launched by the brand in the marketplace. Therefore, the advertisement did have a chronological meaning, but it was relative rather than absolute, and it was specifically with reference to Mahou’s well-known Cinco Estrellas beer.

This was the finding of both Mercantile Court No. 12 in Madrid, in the first instance ruling, and the Provincial Appellate Court in the appeal. Both courts applied the principle established in settled case law that advertisements must be considered as a whole to determine whether they may be misleading.

The analysis put forward by Heineken, which excluded the main visual element of the advertisement (the image of the advertised beer), was flawed, leading to a distorted interpretation of the message conveyed.

The conclusion drawn in the court’s ruling was supported, moreover, by a market study submitted in the proceedings by Mahou in which only 3% of the respondents spontaneously interpreted the advertisement in one of the ways suggested by Heineken, compared with the 20% of respondents who understood it as advertising for the Mahou brand’s first “Radler” type beer.

Access the article published in Expansión Jurídico [in Spanish].

Author: Carlos Morán

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