College must pay R$100,000 for comparing prices with competitors
Anyone who mentions a competitor's name in advertising, diminishing it in the eyes of the consumer by comparing prices, violates a series of rules and commits an illegal act. With this understanding, the 6th Civil Chamber of the Court of Justice of Rio Grande do Sul ordered a college to compensate another educational institution with R$100,000.
In both levels of jurisdiction, the judges B2B Lead considered the defendant's advertisement published in a Google ad to be ''malicious, abusive and illicit'', in addition to ''competitive disloyalty''. The ad's call: ''FTSG Entrance Exam – Leave FTEC and Come Pay Less''.
The 6th Chamber recognized that a legal entity holds objective honor and suffers moral damage whenever its name, credibility or image is affected by an unlawful act, as was evident in this specific case. The possibility is expressed in Summary 277 of the Superior Court of Justice.
In its defense, the defendant stated that the legislation does not prohibit comparative advertising, even because the mention of a higher price for a service does not mean demerit. In summary, he pointed out that the simple mention for the consumer to pay less in a comparative advertisement is not enough to tarnish the plaintiff's image or reputation.
In the first instance, judge Luciana Bertoni Tieppo, from the 6th Civil Court of the District of Caxias do Sul (RS), observed that the advertisement is a clear appeal for consumers enrolled at the plaintiff's college to transfer their courses to the defendant's college, to pay less. Although comparative advertising is not prohibited by law, the ruling said, the advertiser cannot say what he wants and what he wants. It must first comply with the provisions of article 32 of the Brazilian Advertising Self-Regulation Code (Law 4,680/65 and Decree 57,690/66).
''Therefore, the advertisement as conveyed by the defendant, comparative advertising, is abusive advertising, considering that it failed to mention any other factor besides price, clearly stating that the plaintiff charges more expensive prices for the same services that would provide for a lower price, without any authorization from the author to run the advertisement'', he noted in the ruling.
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The first-instance judge considered that the advertising also violated the rules of consumer law, especially article 6, item IV, of the Consumer Protection Code. The provision says that it is the consumer's basic right to be protected against misleading and abusive advertising, coercive or unfair commercial methods, as well as abusive or imposed practices and clauses in the supply of products and services. Therefore, the advertisement did not clarify how it offers the lowest prices.
''In this way, the author is right when she asserts that the aforementioned advertisement caused damage to her image, because by merely reading it, without searching for more information — a current characteristic of the hyperconsumerist society —, the author is associated with the practice of more expensive prices , a situation that remains engraved in the minds of consumers, considering the terms in which the advertisement was broadcast'', he concluded.
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