TUESDAY, 16 JULY 2013
Switzerland: "make taste, not waste" not unfair
This interesting case has escaped me until now. Bodum markets its French coffee press with the slogans "make test, not waste" and "clearly the best way to brew coffee". The manufacturer of the most well-known coffee-capsules - the decision is anonimyzed, but no points for guessing Nestlé - took offense with the depiction of "its" coffee capsules in the above advertising copy. It requested an injunction against further distribution of advertising depicting "its" crushed coffee capsules, and failed.
Nestlé argued the comparison was misleading, because a large portion of its capsules (63% in Switzerland) were recycled, and the ad implied that the French press did not produce any waste, which was incorrect, as the coffee came packaged there, too. The ad would also imply that the Bodum system always made good tasting coffee, which could not be true, as the taste largely depends on the quality of the coffee used (and Bodum does not sell coffee).
The Commercial Court of Zurich had none of it. The taste argument was clearly what in US false adversiting law is called "puffery", i.e., discernible exaggeration, not to be taken literally by the average consumer. Regarding the production of waste, the Court stated that the ad made a correct point - Nestlé's NESPRESSO system did produce waste in the form of used aluminum capsules. The consumer would not think that the French press did not produce any waste, as it was common knowledge that coffee was sold in packaging.
The depiction of crushed coffee capsules was also not needlessly disparaging. The Court held that when critique is directed at a product, rather than a person, the bar for disparagement is higher. The average consumer would not infer from the slogan "make taste not waste" that the NESPRESSO system made no tasty coffee. Using images of crushed capsules was legitimate to illustrate the (true) fact that the capsules were waste after use; the depiction of intact capsules would not have made the same point as clearly.
Nestlé lost on all auxiliary claims as well. In case you wonder: the proceedings took three years, the court fees amounted to CHF 41,000 and Nestlé reimbursed Bodum for legal fees in the amount of CHF 53,000.
Note that the French Cour de Cassation came in May this year to the opposite conclusion and found the ad denigrating (appeal pending). The British ASA adjudication board found the ad not truthful until Bodum adduced further evidence on the life-cycle environmental impact of the products (29 June 2011).
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