Legal Risks Related to Advertising Creativity

Bei Ji Rong (“BJR”) Underwear had published a creative advertisement. The spokesperson Zhao Benshan wore the BJR thermal underwear. He was hijacked by aliens, and frozen in an ice brick. After unfrozen, he was uninjured, and he told the aliens: “Keep Warm, Wear BJR, everyone knows on the earth.” Chen brought a piece of BJR thermal underwear. Later then, he filed a lawsuit against the manufacturer and Zhao Benshan. He claimed that the advertisement was a false advertisement. Although there is controversy in practice, both the court of the first instance and the second instance had rejected Chen’s claim.

The court explained the main reason as, “the advertisement is the creativity by a sci-fi form, and the exaggeration is appropriate. The relevant public could fully understand such creativity, so this is not a false advertisement.”

Therefore, where the exaggeration of a creative advertisement is appropriate, which might not mislead the relevant public, then such advertisement shall not be deemed as a false advertisement. Actually, the “Interpretation of the Supreme People’s Court on Some Issues Concerning the Application of Law in the Trial of Civil Cases Involving Unfair Competition” (“Interpretation”) has defined the “false or misleading publicity” as, “in the case the commodities are publicized by way of obviously exaggeration, if it is insufficient to cause the misapprehension of the public concerned, it shall not be ascertained as the false or misleading promotion”.

However, in individual cases, we have to think about how to distinguish an obviously exaggeration and a false description, and how to determine whether such advertisement would mislead the relevant public. According to the judicial interpretation hereinabove, several factors could be taken into consideration, there are the daily life experience, general public attention, the fact of misunderstanding, the promoted object and etc..

Taking (2018) Jing 0105 Min Chu No.12794 judgment as an example, the Chaoyang court held, “the picture and words on the package are advertising creativity … Zhou said that he found the picture and words on the package were false after he had brought the commodity. In view of this, such picture and words had not misled Zhou to buy the commodity.” The court’s opinion shows whether the advertisement has misled the relevant public to buy the commodities is the key factor in determining a false advertisement.

Then, how to determine whether an advertisement has misled the relevant public? In the case (2015) Yong Ning Min Chu Zi No.2664, the plaintiff claimed that the advertisement for the toothbrush holder set was a false advertisement, and the slogan was “Yushang, the lifelong one”. The court pointed out that it was a common sense that a toothbrush holder could not be used for a lifelong period, so the slogan would not mislead the relevant public. In the case (2018) Yue 0303 Min Chu No.306, the plaintiff claimed that the advertisement for Wang Lao Ji herbal tea was a false advertisement, and the slogan was “Drinking Wang Lao Ji, your life will be extended by 10%”. The court held, “it is well known that the extension of human life is a complex subject, which could not only be analyzed by data. From the perspective of the common sense and normal life experience, such promotion shall be deemed as an obvious exaggeration, which would not mislead the relevant public……. Generally speaking, the plaintiff should know that he could not prove whether the slogan was true or false by just drinking 2 bottles of the herbal tea.” (To be noted that we believe this slogan might have violated paragraph 2, Article 8 of the “Interpretation”, which says conducting the publicity of goods by taking undecided scientific viewpoints or phenomena as the facts for final conclusions. We presume that this is why the advertisement was withdrawn very soon after the judgment was released.)

It view of this, daily life experiences and the general attention of the relevant public are the key points that the court would take into consideration. From this perspective, when facing similar claims, if the advertiser could provide a consumer survey report drafted by an authoritative agency, then the advertiser might have a shoot in the hearing.

In addition, for the creativity by sci-fi form, the advertiser shall pay attention to some specific requirements.
For example, the staff of Shanghai Municipal Administration of Industry and Commerce pointed out, “An advertisement in sci-fi form shall exaggerate appropriately, and it shall not mislead the consumers. Such advertisement shall be marked with ‘Sci-fi’ or ‘Pure Fiction’”.

It also shall be mentioned that the products related to the above advertisements are qualified ones. In other words, the court would also pay attention to the quality of the relevant products.