Member Article

Advertising in the Federation of Bosnia & Hercegovina is regulated through a series of laws and regulations (example: Law on Consumer Protection of BiH, Law on Media, Law on Medical Products etc.), but with the new Law on Prohibited Advertising (Official Gazette of FBiH 101 / 16, the "Law"), which entered into force on 31.12.2016, the control of illegal advertising is regulated, with regards to the relations between merchants, which in the Law on Consumer Protection of BiH remained open. By doing so, the protection of merchants from illegal advertising and the process of protection are regulated, additionally, the forms of prohibited advertising are established, which are misleading and prohibited comparative advertising.

Misleading advertising is advertising which in any way is deceitful or is likely to deceive the persons to whom it is addressed, and therefore may affect their economic behaviour, or advertising that harms or may harm competition in the market.

Comparative advertising, however, is any advertising which directly or indirectly implicates a competitor in the market, or which directly or indirectly implicates the goods or services of a competitor in the market.

Whereas misleading advertising is completely banned, comparative advertising is prohibited only in specific cases, which, together with the relevant criteria when it is prohibited, is specified in the Law.

Collective lawsuit

While the law regulates the possibility for individual actions, in which each merchant alone files an individual lawsuit to protect against prohibited advertising, a specific system of collective protection of merchants is foreseen. Namely in order to avoid situations in which the individual decision in this kind of dispute applies only between the parties, the Law, in accordance with the provisions of Directive 2006/114/EC, introduced a system of collective protection of merchants. By doing so individual subjects who have a legitimate interest file, in their name and in their own interest, as well as in the interest of other merchants, a lawsuit against those retailers or their associations which use prohibited methods of advertising. A decision which would uphold the claim obliges the defendant to refrain from using the same or similar misleading or prohibited comparative advertising which was the subject of dispute in these proceedings, against the merchant as well as other merchants in the future.

However, the law explicitly points out that in these types of disputes the court will not take into account the fact that the disputed advertising caused any kind of damage, or whether it is likely that damage will be caused. The legislator is of the opinion that the questions related to any kind of damage caused as a result of prohibited advertising shall be discussed in a separate lawsuit.