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Date: March 18, 2019
Posted by: CPDMA team

Renault will have to indemnify Volkswagen for advertising that mocks the car Up!

For the judge, propaganda is 'abusive depreciation' and has exceeded the limits of freedom of information.

Upon reaching a speed bump, the driver brakes for a woman and two children to get out of the car. Seconds later, as soon as the driver has passed the obstacle, passengers return to the vehicle, while an announcer says "compact car doesn't need to have compact height".

In another scene, a couple is huddled in the backseat and has difficulty removing their seat belts. The announcer says once again: “you are not the one who is too tall. It’s your car that’s too compact.” The scenes are part of an advertising campaign for Renault Kwid, which was considered abusive by the 2nd Reserved Chamber of Business Law of the São Paulo Court of Justice (TJSP). The case is being processed under number 1045748-39.2017.8.26.0100.

Volkswagen argues in the lawsuit that the competitor's advertising portrays its vehicle in vexatious situations and without presenting objective criteria that prove an alleged inferiority of the German brand. For Opice Blum lawyers, who defend the company, the advertising constituted unfair competition — without the authorization to use the image of the Up! vehicle, which was ridiculed. Therefore, Volkswagen asked for compensation of R$ 900 thousand and a ban on the publication of new offensive commercials.

Renault, defended by the law firm Paulo Gomes de Oliveira Filho, argues that the ads questioned “only reflect, in an absolutely transparent way, the results” of measurements obtained in evaluations of length, wheelbase, ground clearance, height of the driver's seat and cabin height.

"Comparative advertising is a lawful advertising practice, and even displaying a product or brand of competing products - which in this case did not occur -, it would not be illegal because it would only have the purpose of identifying the products that participated in the comparison, without this causing confusion to the consumer in relation to identification, which is the distinctive function of the brand”, defended lawyers Oliveira Filho and Mariana Sceppaquercia Galvão.

the judgment

According to judge Cláudio Godoy, rapporteur of the case at the TJSP, the Federal Constitution, in fact, allows comparative advertising as a manifestation of free enterprise and the exercise of free competition.

However, according to the magistrate, the commercial cannot go beyond the limits of freedom of information. For him, Renault exceeded these limits by formulating an advertisement of “abusive depreciation” of the competitor.

According to Godoy, the illegality of the commercial is proved by the way Renault compares its product to Volkswagen's, using “unnecessarily aggressive” expressions and images.

"In the comparison, the criticisms in relation to the competition's product are more exalted than the advantages of the advertising company's product", understood the magistrate. For the judge, the offense to Volkswagen is not removed even with the humorous content present in the commercial.

In addition, even with Renault's attempt to de-characterize the Volkswagen car, removing the logos and side bands, it is still possible to say that the car belongs to the competitor.

Regarding the part of the commercial that mocks the supposed little space that the Volkswagen car would have, the judge says that there is no data or objective information in the advertisement to prove the criticism. “This is done through the unequivocal ridicule of the competing product, unnecessary for comparison and unfair if nothing objective is demonstrated in this regard”, asserts the magistrate.

The judge highlights that it was “emblematic that, as soon as they were extrajudicially notified, the defendants took the campaign off the air”. Even with the removal, he argues that there was moral damage due to previous views and news about the case.

Despite ordering Renault to pay the compensation, which will be calculated based on the number of days that the advertising was available on the internet, the magistrate rejected Volkswagen's request that Renault be prevented from running new offensive commercials against brands or products of Volkswagen.

“There is no possible preventive control that can be done in such a generic, abstract way, prohibiting, in superfetation of the legal text, new and future offenses that are not even known what they will be, if they occur”, Godoy decided.

"Even the prohibition of advertising that contained images or references to the authors' product could not be prohibited a priori because, as we have seen, comparative advertising itself is not prohibited and can be broadcast regularly", said the judge.

Source: Alexandre Leoratti via Jota.

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