COLOMBIA Law and Practice Contributed by: Juan Carlos Uribe and Sandra Ávila-González, Triana, Uribe & Michelsen
4.3 Challenging Comparative Claims Made by Competitors An advertiser can challenge claims made by a com - petitor before the Superintendence of Industry and Commerce. The authority requests the information pertinent to the claim and then decides whether or not to initiate an investigation. A civil action can also be filed under unfair competition rules, as well as request for preventive injunctions. The investigation will con - clude with the case being filed, or with the competitor being fined. 4.4 Ambush Marketing There are no special rules related to ambush market - ing in Colombia. However, ambush marketing may be challenged on the basis of: • unfair competition; Ambush marketing can be declared illegal if: • it unfairly affects the rightful owner’s economic interests, which will result in the infringing party being ordered to desist its harmful behaviour and compensate for damages caused; • it conflicts with the principles of commercial good faith (eg, by unfairly tarnishing a competing brand); • it involves unauthorised use of a registered trade mark or a confusingly similar sign (eg, of an event organiser or official sponsor); • it uses designs, colours or images protected under copyright; • it uses an image of a celebrity usually associated with another trade mark or sponsor without the authorisation of the individual; or • it deceives consumers as to the origin of the goods or services or the relationship between the provider thereof and the organisers of an event and/or its sponsors. • trade mark infringement; • copyright infringement; • image rights; and • consumer protection. Where an ambush marketing campaign violates any of the aforementioned principles, the plaintiff may pursue any or all available legal actions. In Colombia, there are numerous legal options to prevent an organiser,
tection Authority issued the Good Practices Guide for Advertising Through Influencers (the “Guide”; Guía de Buenas Prácticas en la Publicidad a Través de Influenciadores ), whereby an influencer may be held responsible as an advertiser or as a media channel, depending on their relationship with the manufacturer and the way in which the advertisement is presented. 3.5 Special Rules for Native Advertising The general rules of advertising also apply to native advertising. Consequently, the consumer must be fully informed that the content in question is an advertise - ment and not a regular editorial or piece of entertain - ment content. 4. Comparative Advertising and Ambush Marketing 4.1 Specific Rules or Restrictions Comparative advertising is permitted but must comply with the following rules: • the compared goods and services must be analo - gous (eg, yogurt with yogurt, not yogurt with milk); • objective rather than subjective features or prop - erties of the compared goods/services must be referred to; and • the results of any comparison must be truthful and verifiable. If these rules are not followed, the comparative adver - tising could be deemed as misleading and an act of unfair competition. In addition, although comparative advertising may explicitly refer to – or allude to – a competitor, it cannot be used to denigrate competi - tors or mislead consumers. 4.2 Competitor Copyrights and Trade Marks Trade marks may be used in comparative advertising to explicitly identify the competitor in question. How - ever, the situation is not particularly clear regarding copyright – whether it is possible to use copyrighted work must be evaluated on a case-by-case basis.
56 CHAMBERS.COM
Powered by FlippingBook