Dunnes misled public with Aldi prices ad

Dunnes Stores engaged in a misleading commercial practice likely to deceive customers in an advertising campaign comparing certain products with rival Aldi, the High Court has ruled.

Dunnes had infringed consumer protection law and EU regulations in the campaign, Mr Justice Brian Cregan ruled.

He was giving judgment in an application by Aldi for an injunction preventing Dunnes from infringing its trademarks.

He will hear submissions in two weeks from both sides on what orders he should make. Aldi is also seeking damages. Dunnes is considering whether to seek a stay on the judge’s decision in the event of an appeal.

Aldi had claimed that, in 2013, Dunnes infringed its trademarks through the use of in-store shelf labelling and through the use of free-standing shopfloor advertising banners saying Dunnes’ prices were cheaper.

The ads, featured in outlets around the country, stated: “Lower Price Guarantee” and “Guaranteed Lower Prices on all your Family Essentials every week”.

It was claimed the advertising failed to comply with the Consumer Protection Act 2007 and the European Communities (Misleading and Comparative Advertising) Regulations 2007 on grounds including they failed to objectively compare one or more of the relevant and verifiable features of the Dunnes’ products with those of Aldi Ireland.

The banners also gave the impression Dunnes’ products generally, or its “Family Essentials” range, were cheaper than those of Aldi when there was “no basis” for such a claim, Aldi said.

Dunnes denied the claims and said the advertisements were lawful.

Mr Justice Cregan found that, in relation to pricing labels on Dunnes’ shelves on 14 out of 15 products, the company had infringed the regulations and Irish law.

The products included pork sausages, turkey breast mince, yoghurts, day cream, shower gel, toilet tissue, a sparkling orange drink, tomato ketchup, white sauce, tinned beef, and chicken dog foods and dry cat food.

Mr Justice Cregan found “shelf-edge labels” claiming Dunnes’ prices for these products were lower than Aldi’s did not objectively compare products meeting the same needs or intended for the same purpose.

He also said the advertisements included “the provision of false information” in relation to the 14 products, including information about the nature, composition, characteristics, or ingredients of those products.

He concluded that such information would be likely to cause the average consumer to make a transactional decision, which that consumer would not otherwise make.

He also found Dunnes omitted or concealed material information in relation to comparative advertisements that the average consumer would need to make an informed transactional decision in contravention of the Consumer Protection Act. Earlier, the judge said Dunnes had breached EU Regulation 4.2.d which requires objective comparison of like products.

The Dunnes tomato ketchup did not objectively compare with that of Aldi because it did not draw the consumer’s attention to the fact that the latter was a higher quality product, he said.

Mr Justice Cregan also said Dunnes had taken unfair advantage of Aldi trademarks without due cause and could not rely on an EU comparative advertising directive as a defence to its infringement of trademark.