Aldi sues Irish rival over price comparison adverts

Supermarket chain Aldi has filed a lawsuit against Irish retailer Dunnes Stores following a dispute over an allegedly misleading advertising campaign.

Aldi has accused the multi-purpose store of illegally using its trademarks in an advertising campaign which compared prices of products at both stores.

It says Dunnes infringed its trademarks by displaying banners in several supermarkets, implying that its products were cheaper than Aldi’s.

German-owned Aldi filed the case on November 26 at the High Court of Ireland, and it was admitted to the Commercial Court division on December 9.

Aldi said Dunnes had no basis for implying its products were cheaper because it was not a like-for-like comparison.

Gerard Kelly, partner at Matheson in Dublin, said Ireland introduced legislation in 2007 regulating comparative advertisements and unfair commercial practices, based on EU directives.

“One of the prohibited practices … is where the advertisement ‘does not objectively compare one or more material, relevant, verifiable, and representative features of those products, which may include price’,” said Kelly.

According to Kelly, one of the benefits of an action under the 2007 legislation is that Aldi, despite the fact its trademark was used in the adverts, would not have to prove they caused any damage to the mark as quid pro quo monetary damages cannot be claimed under the regulations.

“The relief sought would be for an order prohibiting the continuation of the misleading comparative communication and potentially a corrective statement,” said Kelly.

Kelly added that while shopping trolley price comparisons are common in the supermarket sector, misleading comparative advertising cases are not as common as you might expect.

“They would normally involve a significant investment in affidavit evidence from marketing and other professionals by the parties, which courts find difficult to adjudicate on so there is generally a view that comparative advertisements are hard to successfully demonstrate as misleading even when the burden on factual statements is with the advertiser not the trademark owner."

This is not the first time Dunnes has been involved in litigation. At the end of 2009 it was sued by Tesco for its price comparison adverts in national newspapers.

“The judge in that case seemed to call it a scoreless draw and the relief was not granted,” said

Kelly, who added these types of advertising disputes were probably more common during the Christmas period when promotional pricing wars “are at their peak.”

“It remains to be seen what issues are to be determined in the Aldi v Dunnes Stores proceedings which will progress over the coming weeks.”

The court filings are not available on the public record due to the inclusion of affidavits.

Aldi declined to comment on the case. Dunnes had not provided comment at the time of writing