“Advertising is the key to business success”.
Probably all entrepreneurs realise that effective
advertising is indispensable in the pursuit of almost
any business activity. In the age of specialisation it
is natural that some of the business operator’s
functions, especially minor ones, are outsourced to
third party businesses, either to save capital or to
ensure that the service in question is provided by
professional firms. An additional advantage of
adopting this approach comes from the general rule
expressed in Art. 429 of the Civil Code, pursuant to
which a business operator that has entrusted the
performance of an activity to another business
entity is released from the liability for any damage
caused by such entity when performing that
activity, provided that the former was not at fault
when choosing the said business entity or that it
entrusted the activity to a person, business
operator or business which performs such activity
within the scope of its professional activity.
Consequently, the business operator in question
should benefit from a high quality service, in
addition to the guarantee that it would not be held
liable for any potential damage associated with the
performance of the outsourced job.
However, the situation is slightly different for
advertising activities. The applicable regulations
here are Art. 16 and 17 of the Act on Counteracting
Unfair Competition of 16 April 1993, which provide
that the liability for an advertisement that is an act
of unfair competition falls on the business operator
together with the advertising agency (or any other
business operator that created the advertisement).
Therefore, for the business operator to be liable it
is irrelevant whether it has outsourced the creation
of the advertisement to a professional entity that is
engaged in such business, because the provisions of
Art. 16 and 17 of the Act on Counteracting Unfair
Competition stand as a lex specialis in relation to
Art. 429 of the Civil Code and consequently exclude
its applicability. It should also be noted here that
the Supreme Court made it clear that for an
advertisement to be an act of unfair competition, it
is not necessary that the business operator’s actions
are deliberate or intended to create adverse
consequences.
It is important to be aware of what kind of
advertising may constitute an act of unfair
competition. The legislator stipulates, without
providing an exhaustive list, that unfair advertising
includes but is not limited to an advertising that is contrary to the law, morality or that is offensive to
human dignity; advertising that misleads customers
and may influence their decisions regarding the
purchase of a good or service; advertising that
seeks to appeal to customer feelings by inducing
fear, taking advantage of prejudices or children’s
credulity; any statement intended to encourage
purchases of goods or services while appearing to
be neutral information; an advertising that
interferes with privacy, in particular by oppressive
solicitation of customers in public places, the
mailing of any not-ordered goods at the customer’s
expense or the abuse of technical means of
communication.
Some of these descriptions include vague concepts,
many of which can be identified as acts of unfair
competition only after they are examined in the
context of a specific situation. For this reason,
when you order an advertisement or suspect that a
certain advertisement that is directed against us
represents an act of unfair competition, it is
worthwhile to seek the advice of lawyers, who can
either prevent the advertisement that may expose
the business operator to civil liability from being
published or take legal steps against entities that
infringe your interests by unfair advertising.
MILLER, CANFIELD,
W. BABICKI, A. CHEŁCHOWSKI I WSPÓLNICY SP.K.
ul. Batorego 28-32
81-366 Gdynia
Tel. +48 58 782-0050
Fax +48 58 782-0060
gdynia@pl.millercanfield.com
ul. Nowogrodzka 11
00-513 Warszawa
Tel. +48 22 447-4300
Fax +48 22 447-4301
warszawa@pl.millercanfield.com
ul. Skarbowców 23a
53-125 Wrocław
Tel. +48 71 780-3100
Fax +48 71 780-3101
wroclaw@pl.millercanfield.com
Disclaimer: This publication has been prepared for clients and professional associates of Miller Canfield. It is intended to provide only a summary of
certain recent legal developments of selected areas of law. For this reason the information contained in this publication should not form the basis of
any decision as to a particular course of action; nor should it be relied on as legal advice or regarded as a substitute for detailed advice in individual
cases. The services of a competent professional adviser should be obtained in each instance so that the applicability of the relevant legislation or other
legal development to the particular facts can be verified.