Newsroom

Landmark cross-border judgment upheld

TV Direct mail shots are misleading

234/05    22 December 2005

The Brussels Court of Appeal has rejected an appeal against a landmark ruling in favour of the OFT, confirming the OFT's view that mailings sent to UK consumers by Belgian company D Duchesne SA were misleading.

The OFT took the first ever cross-border court action in Europe against D Duchesne SA in 2004 (see press releases 63/04 and 208/04). The OFT obtained an injunction against the company in the commercial court in Belgium to stop the trader from making misleading prize notifications in connection with its home shopping catalogue business. D Duchesne SA appealed against the injunction but the Court of Appeal agreed with the OFT's view that the mailings were misleading, and upheld the original ruling.

D Duchesne SA, trading in the UK under the names 'TV Direct Distribution' and 'Just 4 You', had sent millions of mailings to UK consumers. The mailings led consumers to believe that they had won a considerable cash prize, usually £10,000, and that they could only claim this prize if they bought a product from the catalogue enclosed with the mailing. However, the vast majority of recipients of the mailing were unlikely to receive the cash prize they thought they had won, as responding to the mailing only guaranteed a consumer entry into a draw for the prize in question. Hundreds of consumers complained to the OFT that they had been misled by the mailings.

The OFT argued that the company's prize notifications were misleading and unfairly persuaded recipients to buy its products. Approximately 1 million mailings per month were sent to UK consumers, with D Duchesne SA receiving 4,000 orders per day from its catalogues.  

Welcoming the judgement, Christine Wade, Director of Consumer Regulation Enforcement, said:

'This ruling sends a clear message to companies sending similarly misleading mail shots that they are unacceptable. We will continue to work to protect consumers from deceptive, dishonest and misleading marketing practices, whether they originate in the UK or elsewhere.'

NOTES

1. The OFT commenced proceedings in the commercial court in Brussels for breaches of the Belgian and English implementation of the Misleading Advertising Directive (see note 3) on 10 March 2004 (see press release 63/04), and the court ruled in the OFT's favour in December 2004 (see press release 208/04). D Duchesne SA's appeal against the decision was heard in August 2005 in the Belgian Court of Appeal.

2. Part 8 of the Enterprise Act 2002 gives effect to the Injunctions Directive in the UK and gives the OFT, other general enforcers and designated enforcers which are public bodies, the power to take action against businesses in other European countries that are infringing certain European-based consumer protection legislation. When a business based in another EU country harms the collective interests of UK consumers, the OFT will normally ask the relevant community enforcer to take enforcement action. However, the OFT is able to take action in other EU member states if no community enforcer can act.

3. Council Directive 84/450/EEC on Misleading Advertising provides protection against misleading and unacceptable comparative advertisements. Under the Injunctions Directive 98/27 the OFT is empowered to enforce the misleading advertising laws of another member state and apply to their courts for an injunction to end continued publication of misleading advertisements in the UK. Under the directive, an advertisement is misleading if it 'in any way, including its presentation, deceives or is likely to deceive the persons to whom it is addressed or whom it reaches and which, by reason of its deceptive nature, is likely to affect their economic behaviour or which, for those reasons, injures or is likely to injure a competitor'.

Back to:2005