The Supreme Court allowed Aldi’s appeal in part, declaring that Dunnes Stores’ comparative advertising was not permitted under the 2007 Regulations in relation to store banners and freestanding displays, and specific shelf-edge labels comparing toilet tissue and day cream. It did not grant a permanent injunction.
The dispute arose from a Dunnes advertising campaign that ran in June, July and August 2013. Aldi challenged labels, banners and freestanding displays that used its trade mark. The campaign also included 247 other shelf-edge labels using slogans such as “lower price guarantee” and “always better value”.
The High Court had found almost all the challenged material unlawful and granted an injunction. The Court of Appeal reversed most of that decision, but upheld the finding that the banners and freestanding displays were impermissible comparative advertising. It set aside the injunction and declined to order a retrial on whether the specific shelf labels were misleading.
On further appeal, the Supreme Court held that the High Court had applied the wrong test to the product comparisons. The law required an objective comparison of at least one material feature, which could be price; it did not require products to be comparable in every respect. The court considered the remaining question itself, because the relevant product differences were not disputed and it could assess whether the advertising was misleading.
The court found that the specific shelf labels comparing toilet tissue and day cream were misleading by omission. The toilet rolls differed substantially in length, while the Aldi day cream had a sun protection factor of six and the Dunnes product did not. In both cases, the court said, the comparison could leave consumers with a false impression that the products were equivalent in a feature they might value.
The court rejected Aldi’s challenge to the other specific shelf labels, including comparisons involving food and pet food. It also upheld the Court of Appeal’s conclusion that the 247 general shelf labels were not misleading: the specific price information was clear, and the slogans did not override it. The banners and freestanding displays remained unlawful because they did not make an objective comparison of products.
The court declined to grant a permanent injunction. It said the campaign was six years old, there was no indication Dunnes intended to repeat it, and the earlier injunction had restrained advertising the court found lawful. The court’s final order was limited to a declaration covering the banners and freestanding displays, and the specific toilet tissue and day cream labels.