MALTA Law and Practice Contributed by: Karl Tanti and Christine Borg Millo, AE Legal
Native advertising must be clearly identified as adver - tising and distinguished from editorial or non-promo - tional content. It should be evident to the audience that they are engaging with sponsored content. Clear labelling or design elements that differentiate native adverts from regular content are essential. Any material connection between the advertiser and the content must be disclosed. Also, if the content is sponsored or paid for, this fact must be transparently communicated to the audience.
holder with consolidated proprietary rights, legitimises the trade mark or sign, and enhances legal certainty regarding those rights. However, any aggrieved individual may still assert their prior use of a trade mark or sign before a court of law. 4.3 Challenging Comparative Claims Made by Competitors Misleading comparative advertising may give rise to civil or even criminal sanctions. Under the Commercial Code, upon the claim made by the injured party, the trader responsible may be found liable for damages and interest or face a penalty. The injured party may further demand that all material in breach of the Code be removed or destroyed. If a penalty is sought, it falls within the jurisdiction of the First Hall of the Civil Court. The determined pen - alty ranges between EUR465.87 and EUR4,658.75, dependent on various factors such as the severity of the case, duration, and intent. Under the Trademarks Act, the unauthorised use of a trade mark with the intent of personal gain or caus - ing loss to another, and without the consent of the owner, may lead to criminal liability. Offenders can face imprisonment for up to three years, a fine of up to EUR23,295, or both upon conviction. 4.4 Ambush Marketing Ambush marketing is the unauthorised use of market - ing tactics by any person to capitalise on the signifi - cant media exposure of an event, team, or individual, often at the cost of a rival company’s official affiliation. Such marketing would be carried out without the nec - essary licensing, affiliation or sponsorship fees. Malta does not have specific legislation or regulations dedicated solely to addressing ambush marketing. However, due to the inherent nature of ambush mar- keting, aspects of intellectual property, trade mark, competition, and consumer protection laws may be applicable in such situations. Depending on the cir - cumstances and the applicable law, criminal and/or civil liability may apply.
4. Comparative Advertising and Ambush Marketing 4.1 Specific Rules or Restrictions
Comparative advertising is directly addressed in the Commercial Code, whereby Article 32A prohib - its traders from engaging in comparative advertising practices. However, the Commercial Code goes on to provide exceptional circumstances in which such comparative advertising is permissible. Accordingly, comparative advertising is permissible when comparing like with like. Such comparisons must be objective and cannot be misleading. The Commercial Code explicitly refers to the Consumer Affairs Act for further elaboration on this matter. 4.2 Competitor Copyrights and Trade Marks Advertisers in Malta are permitted to use a competi - tor’s name, trade mark, or packaging in comparative advertising, but the law allows such use only to the extent necessary to identify the competitor’s product or service, and the comparison must be fair, objective, and not misleading. The permissibility of comparative advertising does not absolve any potential liability under intellectual property law. Under the Trademarks Act, the offend - ing party may be liable for civil and even criminal sanc - tions, depending on the use and intent behind the act. Under Maltese law, prior use of a trade mark or trade sign prevails over registered trade marks/signs. How - ever, it is always advisable to register trade marks with the Commerce Department. Registration provides the
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