Misleading advertising by omission (failure to disclose) | 2013

Author(s) Christine Isabel Martins
Advisor(s) Maria Miguel Carvalho
Year 2013

Synopsis The aim of this dissertation is based on the analysis of the misleading advertising by omission (known as failure to disclose) under the legislative frameworks, in particular the Advertising Code (which transposes to the Portuguese law the European Parliamente and the Council Directive 2006/114/CEE of 12th of December of 2006), the Unfair Commercial Practices Law (which transposes to the Portuguese law the European Parliament and the Council Directive 2005/29/CE of 11th of May of 2005) and also the Industrial Property Code. In fact, misleading advertising by omission assumed particular emphasis in the Portuguese legal system with the transposition to the state law of the Directive 2005/29/CE, because until that moment, the law didn’t expressly provide it, which raised some issues around its admissibility. Overtaken the referred obstable, it is necessary to contribute to its development by the study of its concept and the necessary conditions to its verification. In a first moment, the purpose of our study is a brief description of the historical evolution of the misleading advertising, focusing in particular its relationship with the Unfair Competition provided in the article 317.º of the Industrial Property Code, and also in the current challenges that such relation causes in the determination of which statute is aplicable to each particular situation. After this analysis, it is distinguished the misleading advertising by omission from other figures that, in our understanding, can be confounded in the legal practice, such as subliminal advertising, superlative advertising and aggresive advertising (Part I). Framed the figure of our study, we have reached the pinnacle of our research: the study of the conditions to the verification of the misleading advertising by omission. To reach this goal, we chose a primary analysis of the requirements of the misleading advertising by action, because besides the variousness of doctrine and case law, this one is expressly recognized at more time, and some conditions are the same to the omission (Parte II). Finally, the last part of our study lies on the possible ways of reaction that are available to the plaintiff so he can prevent and punish the practice of situations that are cathegorized as misleading advertising by omission (Part III).

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