Issue link: https://maltatoday.uberflip.com/i/523863
52 maltatoday, SUNDAY, 7 JUNE 2015 Opinion T he First Hall of the Civil Courts on 28 May, 2015 held that an advert which was comparing another product was acceptable at law because the comparison was truthful and faithful to both products. This was given in a judgement between Kram Trading v Oleg Barkov who trades as Barkov Distribution. Kram Trading in its application explained that it imports and distributes Brunox products including Brunox epoxy, an anti-corrosion and primer system in one which has a coverage of 15m2 every litre. On the other hand the defendants import and distribute similar products Owatrol Oil, which had distributed f liers and other promotional material that compared this product with Brunox epoxy and stated that the latter cannot be used as a primer and that Owatrol had a larger coverage of 18m2 per litre. The plaintiff held that this ran counter to Art 32A of the Commerical Code as no such comparative advertising may take place. Such advertising was widespread. The plaintiff asked the Court to declare this was contrary to law and order the defendant to pay €465.87 and €4,658.75 in penalties and that the promotional material be collected and destroyed. Mr Barkov replied by saying that he is in line with the law and his comparisons between the two products are sanctioned by law and that the details of the comparisons are devised by a number of experts. The Court, presided by Mr Justice Mark Chetcuti, examined the evidence brought before it. The plaintiffs held that they have been distributing Brunox epoxy rust converter for the last 12 years. This product is used on new and rusted iron as a primer. Owatrol Oil is also used as a primer. The plaintiff 's salesman came across f lyers of Owatrol Oil in ironmongeries which compared it to Brunox. The f lyers claimed that the former product had better coverage and the use as a primer. The f lyer gave a number of technical details showing it is better to use Owatrols Oil, than its competing product Brunox. For example it stated that "Brunox Epoxy does replace the traditional primer", while "OwatrolOil can be used as a primer". Oleg Barkov testified that Owatrol Oil is mainly a rust converter, primer for oil paint, wood sealer and a paint additive. When Barkov started importing this product he made a study on the features and compared it with other products which are on the market, including Brunox and therefore, these differences were noticed. He then decided to prepare a write-up on these advantages and differences. The Court pointed out that the action is based on Articles 32A and 32B of the Commercial Code, which is based on EC Directive 97/55. Article 32A stipulates that comparative adverts are not allowed. A comparative advert refers to every advert which identifies a competing service or product. Comparative adverts are allowed only if they follow a list of conditions being: "(a) it is not misleading within the meaning of article 32B or within the meaning of articles 51C and 51D of the Consumer Affairs Act; (b) it compares goods or services meeting the same needs or intended for the same purpose; (c) it objectively compares one or more material, relevant, verifiable and representative feature of those goods and services, which may include price; (d) it does not discredit or denigrate the trade marks, trade names, other distinguishing marks, goods, services, activities, or circumstances of a competitor; (e) for products with designation of origin, it relates in each case to products with the same designation; (f ) it does not take unfair advantage of the reputation of a trade mark, trade name or other distinguishing marks of a competitor or of the designation of origin of competing products; (g) it does not present goods or services as imitations or replicas of goods or services bearing a protected trade mark or trade name; (h) it does not create confusion among traders, between the advertiser and a competitor or between the advertiser's trade marks, trade names, other distinguishing marks, goods or services and those of a competitor." Then according to Article 32B(2) an advert is misleading when there are the following characteristics: "(a) the characteristics of goods or services, including their availability, nature, execution, composition, method and date of manufacture or provision, fitness for purpose, uses, quantity, specification, geographical or commercial origin or the results to be expected from their use, or the results and material features of tests or checks carried out on the goods or services; (b) the price or the manner in which the price is calculated, and the conditions on which the goods are supplied or the services provided; (c) the nature, attributes and rights of the advertiser, including his identity and assets, his qualifications and ownership of industrial, commercial or intellectual property rights or any awards and distinctions made to him." In this case both parties claim that their position is backed by technical data, however, the court is obliged to examine whether this f lyer misleads the public and quoted from jurist Paul Torremans, the author of Intellectual Property Law which states that in such cases one should make use of the objective test. The Court commented that it is the plaintiff that has to prove that the advert is misleading, however, this was not done. The plaintiff failed to prove that the advert contained claims which were not truthful and misleading. The court upon seeing a lack of evidence from the plaintiff dismissed the claim. Malcolm Mifsud, Partner, Mifsud & Mifsud Advocates Malcolm Mifsud mmifsud@mifsudadvocates.com.mt mmifsud@mifsudadvocates.com.mt A planning application contemplating the extension of existing washrooms and their conversion to a penthouse in Triq il-Kbira, Mosta was initially turned down by the MEPA's Environment and Planning Commission after it held that the proposed development is incompatible with the urban design and environmental characteristics of an Urban Conservation Area. The Commission underlined that the proposal would not maintain the visual integrity of the area and so does not comply with Structure Plan policy BEN 2. In addition, it held that the proposed development conflicts with Structure Plan policy UCO6 since "it would detract from the overall objectives of the Structure Plan for the preservation and enhancement of buildings, spaces and townscapes within Urban Conservation Areas". Reference was also made to Structure Plan policy UCO8 which provides that development in Urban Conservation Areas must be compatible with the existing character and urban design of the area. In reaction, the applicant lodged an appeal before the Environment and Planning Tribunal, insisting inter alia that the site in question is already "legally committed with three floors plus overlying washrooms". But even so, the applicant (now appellant) maintained that the policy document "Development Control Policy and Design Guidance 2007" allows the construction of penthouses over three storey buildings. But even so, the appellant concluded that the proposed penthouse would not be visible from long distance views. For its part, the Authority reiterated that the height of the building exceeds the height limitation for the area, adding however that "the site is affected by two different height limitations." The case officer explained that the front part of the site has a permitted height limitation of three floors plus a receded floor whereas the rear extents feature a restricted height limitation of two floors. As a final point, the case officer remarked that contrary to appellant's assertions, penthouses are expressly prohibited in Urban Conservation Areas, and that "such an additional floor would dominate over the existing uncommitted skyline." In its assessment, the Tribunal confirmed that according to the local plan maps, the site in question falls within a boundary where the allowable height limitation varies from two to three floors and an additional receded floor. Nevertheless, the Tribunal reasoned out that these maps are merely indicative and are not to be used for "direct interpretation". The Tribunal also made reference to paragraph 3.3.16 of the local plan, where it is expressly provided that "notwithstanding the general restrictive approach on building heights, an additional receded floor is being allowed in those parts of the Primary Town Centres of Birkirkara, Hamrun and Mosta that are located within the Urban Conservation Areas". In the circumstances, the Tribunal opined that the Authority should have acted more reasonably and it was only logical to allow a receded floor as proposed by the applicant. Against this background, the Tribunal upheld the appellant's request and ordered the Authority to issue the relative permit. robert@rmperiti.com Robert Musumeci is a warranted architect and civil engineer. He also holds a Masters Degree in Conservation and a degree in law Robert Musumeci MEPAwatch Tribunal insists on reasonable decisions Court allows ad following comparison of products