Spain Country Report

Legislation:	GENERAL ADVERTISING ACT
Topic:	UNFAIR COMPETITION
When:	MARCH 2001
Who:	ADVERTISING SELF-REGULATION ASSOCIATION
Where:	SPAIN
What happened:	The soft-drinks producer SCHWEPPES, S.A. ("SCHWEPPES"), ran an advertising campaign which was aired by various Spanish radio stations and which was of the following content: "An Imitation? Not that bad, but it is definitively not your 'SCHWEPPES Tonic Water'. It would really like to be the original. It would really enjoy seeping into your glass. But the Nothing Miss or Nothing Mix will never cheat your sophisticated and excellent taste for the authentic." The radio spot ended with the slogan: "SCHWEPPES Tonic Water - unique in its species". At the same time COCA-COLA SPAIN, S.L. ("COCA-COLA SPAIN") was selling a new tonic water called "Nordic Mist". Although COCA-COLA Spain requested that SCHWEPPES cease their campaign, SCHWEPPES continued with the advert but eliminated the words "Nothing Miss or Nothing Mix". COCA-COLA SPAIN was of the opinion that both campaigns were in violation of the Code of Conduct, published by the Advertising Self-Regulation Association, in particular Article 21: Article 21 - DenigrationAdvertisers must not implicitly or explicitly denigrate or denounce other companies, activities, products or services. Exact, truthful and pertinent advertising claims are not considered denigrative. At no time should a competitor be mentioned with reference to its personal circumstances or its company's. Considering both the campaigns as a breach of the General Law of Advertising (Art. 6a) and of the Unfair-Competition Law (Art. 9), COCA-COLA SPAIN initiated a claim with the Advertising Self-Regulation Association. After being confronted with the complaint, SCHWEPPES suggested mediation in an attempt to reach a mutually amicable solution. Both parties finally entered into a mediation agreement which included the following: "SCHWEPPES would cease both campaigns and would not initiate them at any future time. COCA-COLA SPAIN would desist in its legal action in relation to this case."
Comments:	Readiness among enterprises to achieve amicable mediation appears to be increasing.
Legislation:	DECREE OF THE AUTONOMOUS REGION OF GALICIA (dated 22nd March 2001)
Topic:	TOBACCO ADVERTISING
When:	MARCH 2001
Who:	AUTONOMOUS REGION OF GALICIA
Some Selected Highlights:	- All types of tobacco advertising is prohibited on TV Channels and radio stations. - Advertisements in newspapers and magazines is permitted as long as they do not appear: a) on first page; b) alongside articles/adverts relating to sports or hobbies; c) in sections which are targeted directly at the under 18s. - Furthermore the distribution of tokens for tobacco products or products which contain indirect advertising for tobacco to the under 18s is prohibited; this includes tokens handed out for free or as prizes for games or competitions. - Characteristics relating to labelling: including maximum limits of nicotine and tar, as well as ingredients and general and special warnings referring to the product.
Legislation:	GENERAL ADVERTISING ACT, UNFAIR-COMPETITION LAW
Topic:	UNFAIR COMPETITION
When:	FEBRUARY 2001
Who:	SELF-REGULATION
Where:	SPAIN
What Happened:	OSBORNE y CIA, S.A. ("OSBORNE"), ran an advertising campaign consisting of a direct promotion in which they used several red boxes each containing two brandy glasses, two wide glasses, two miniature bottles of "Magno" brandy and two miniature bottles of "Ballantine's" whisky. On the outside of the lid of the box, in white letters was the phrase:" The infidelity begins with oneself". Printed on the inside of the lid was the following: "Whisky with ice? 'Magno' with ice! Glass - The wide glass allows you to appreciate the aroma achieved by years of ageing. Temperature - The brandy and the whisky at the right temperature have a similar aroma. Having cooled the 'Magno' down you will value more its entire bouquet. Ice - Serving your 'Magno' with ice you will taste the richness of a good brandy. "The words: "a little of 'Magno' with ice is a lot" were engraved on the wide glasses. There was also the figure of a bull positioned next to the "OSBORNE" brand name. 'Ballantine's' is a registered trademark produced by Allied Domecq Spirits & Wine, Ltd., owned by the British company DOMECQ Holding, S.A., ("DOMECQ") and they considered this advertising to be illicit and illegal. Whereas DOMECQ produces a well known and prestigious whisky, which is one of the three top selling whiskies in Spain, OSBORNE appeared to be using the reputation of the said "Ballantine's" solely to introduce its "Magno" brandy into the alcoholic night drinks market. In this context DOMECQ claimed various violations of the Code of Conduct, published by the Advertising Self-Regulation Association. The panel considered this type of advertising to be in breach of Article 20 of the Code of Conduct by reason of "exploitation of another's reputation": Article 20. - Exploitation of the prestige of others and imitation Advertising must not contain either explicitly or implicitly, any reference to the distinctive signs of another advertiser, other than in legal or conventionally permitted cases or in the case of acceptable comparative advertising. Advertisements will not imitate the general outline, text, slogan, distinctive signs, visual presentation, music or sound effects of other national or foreign advertisements, even if they have come to an end, particularly if likely to create confusion or if intended to generate undue advantage. In advertising all risk of confusion must be avoided. Also in the light of Article 12 of the Unfair Competition Law (Ley de Competencia Desleal) and Article 6 b) of the General Law of Advertising (Ley General de Publicidad) the panel pointed out that this kind of "adhesive advertising" is forbidden. By using the reputation and notoriety of a competitor who is clearly above and not in the same league as the advertiser, the desired result could only be that the advertiser is attempting to transform or borrow the prestige of the competitor to lend to its own product. This type of advertising has nothing in common with comparative advertising, which characteristically keeps a certain distance from the competitor by showing the consumer the advantage of a particular product, services or establishment compared to the competitor's, based on essential and objectively demonstrable characteristics. At no time at all will comparisons between products be tolerated where the said product is clearly not in the same league. The panel therefore declared this advert as a breach of Art. 20 of the Code of Conduct, published by the Advertising Self-Regulation Association and ordered OSBORNE to desist.
Comments:	No profit from the good reputation of a competitor.
Legislation:	GENERAL ADVERTISING ACT
Topic:	PROTECTION OF ANIMALS
When:	FEBRUARY 2001
Who:	ADVERTISING SELF-REGULATION ASSOCIATION
Where:	SPAIN
What Happened:	The German Publicity Council (Deutscher Werberat) and the Federation for the Protection of Animals of Valencia presented a claim against an advertisement on the Spanish Radio Television (RTVE), after considering the advert to be illicit. The claimed advertising promoted the video "Country of Bulls" ("Tierra de Toros"), which presented images of different moments in the life of a bull from birth; it being raised in open country until the bullfight. In other words, the life of the fighting bull; its rearing, selection for the bullfight, its history, brave quality and the respect of the "matador" towards the creature. 15 videos about the "fascinating world" of a "brave bull" were offered for 7.990 Pesetas which one could purchase in order to understand the essence of the bullfight.The claimee considered such advertising to be illicit advertising, which infringed the Code of Conduct of the Animal Protection and Defence Federation. The claimee believed that Spanish television offering videos of this kind would increase bullfighting which would not be appropriate bearing in mind "mad cows" disease and action undertaken in respect of the same by the European Union. The claimee foresaw the abolition of this Spanish tradition and considers that bullfighting, the killing of an animal in public, belonged under the title "cruel sport". Also, they were convinced that this video might provoke an increase in aggression in people - particularly youths. RTVE defended the legal and ethical correctness of its advertisement, since it did not contain any illicit element, in its commercial message nor in the product being advertised. They were mindful however that there may have been certain parts of the population that would not agree with this video. The Jury had to examine the legal and ethical correctness of the advert being distributed on television and on the internet. In this respect the panel reiterated that publicity initiated with the aim of promoting activities according to Spanish juridical rules are legitimate unless its prohibition has been expressly established by legislation. In that case, the distribution or marketing of images of a spectacle, in this case bullfighting, closely linked to Spanish culture, no matter how it is considered, cannot be prohibited, since they are perfectly licit. The panel therefore had to find that no argument existed validated that the marketing of a video about the life of a bull as being incorrect or illicit. In relation to the aforesaid, the panel of the Advertising Self-Regulation Association rejected the claim presented by the German Publicity Council and the Federation for the Protection of Animals of Valencia.
Comments:	No punishment without a law. Bullfighting is legal in Spain.
Legislation:	GENERAL ADVERTISING ACT
Topic:	DISCRIMINATION OF WOMEN IN ADVERTISING
When:	JUNE 2001
Who:	PANEL OF THE ADVERTISING SELF-REGULATION ASSOCIATION
Where:	SPAIN
What Happened:	The company Unilever Foods España ("UNILEVER") advertised with a poster announcing the "New Solero Ice", copies of which were placed near to its different selling stands and was of the following content: Under the slogan: "Discover it, it will freeze you !" appeared the picture of a nude and very feminine looking female model, her apparently naked body obscured by large ice blocks with strawberries frozen inside them. It was clearly evident that the ice and strawberries made pictorial reference to the characteristics of the product on offer (ice and strawberries). The poster's headline read "New Solero Ice", the name of the product and next to this the distinctive sign of the "Frigo" brand name. By sending e-mails to the Advertising Self-Regulation Association some private persons demonstrated their annoyance and dislike of the advert. In their opinion, the poster constituted discriminatory advertising, in the use of a picture of a female in a way which they considered unacceptable and violating the dignity of women, thus breaching the Code of Conduct, published by the Advertising Self-Regulation Association, particularly in Articles 8 an 10: Article 8 - Respect of good taste Advertising must not include contents that cause offence against prevailing standards of good taste, social decorum, and good customs. Article 10 - Discriminatory advertising Advertising must avoid endorsing discrimination based upon race, nationality, religion, sex or sexual orientation. Advertising must respect human dignity. After being confronted with the e-mails, UNILEVER rejected the subjective view of the private individuals and pointed out that its campaign neither violated the dignity of anyone nor breached any human rights either in the constitution, nor any legislation referring to women. The panel admitted that a part of the Spanish population, especially women, might be upset by the poster. It pointed out that the Spanish constitution of 1978 specifies the fundamental right of expression and information, but that there is a limit with regard to the dignity of individuals. Nevertheless, in Spanish society, which is actually quite tolerant, open and plural, there is no violation of human dignity in showing a human body in an aesthetic, harmonic way and, of course, without any element of pornography. Following these rules, the UNILEVER poster did not have to be recalled. Consequently, the complaints of the private individuals were rejected.
Comments:	Adverts containing nudity in an aesthetic, non-pornographic way does not breach any human rights in today's society.