BACKGROUND

The organisation ASOCIACIÓN DE USUARIOS DE LA COMUNICACIÓN brought an action at first instance for declaratory relief and cessation of unlawful advertising and unfair competition against the company “BEAM SUNTORY SPAIN, S.L.”, a company engaged in the distillation, rectification and blending of alcoholic beverages.

The action was based on the advertising of the trade mark “LARIOS ROSÉ”, carried out by means of the installation of a billboard on a private plot of land located in Capitán Haya Street (now called Poeta Joan Maragall) on the corner of Pedro Teixeira Street in Madrid.

Thus, the infringement of articles 3.d) and 5.5 of Law 34/1988, of 11 November 1988, General Advertising Law, articles 28.1.h) and 30.3 of the Law of the Community of Madrid 5/2002, of 27 June 2002, on drug addiction and other addictive disorders, and article 18 of Law 3/1991, of 10 January 1991, on Unfair Competition, was alleged.

The Commercial Court handed down a ruling in which it fully upheld the claim, considering that the advertising of alcoholic beverages with an alcohol content of over 20º, in this case “LARIOS ROSÉ” brand gin, constituted unlawful advertising that fell under the prohibition established in article 5.5 of the General Law on Advertising and concordant precepts of the autonomous community regulations. In essence, the decision highlighted the purpose of the regulation, which is aimed at limiting and restricting consumer access to advertising for alcoholic beverages whose sale or consumption on the public road is prohibited, on the understanding that advertising messages placed on private property that are perceptible by any consumer using the public road are subject to the same legal limits as those installed on the latter.

In view of this decision, the defendant “BEAM SUNTORY SPAIN, S.L.” appealed to the Regional Court against the judgment of Madrid Commercial Court No. 3.

DECISION OF THE REGIONAL COURT

Firstly, the court states that the problem relating to the delimitation of the scope of the concept of “advertising on the public roads” has already been addressed by the same court in numerous decisions, of which the judgment of 27 November 2015 stands out, which states: “It is not a question of determining the scope of what is a public road […] but of what constitutes “advertising on the public road”, which must be interpreted by taking into account (i) what the advertising represents and (ii) the purpose of the prohibition.

In short, by “advertising on the public roads” we must understand that which is addressed to any person passing through the public road. And the prohibition is aimed at protecting health, preventing the advertising of high-proof alcoholic beverages from being directed at those who walk on the public road, encouraging their indiscriminate consumption among such persons”.

In the judgment of this court of 23 February 2016 they add that: “To advertise “on the public road” is to make it possible for that communicative process of an integral nature to take place in relation to the recipients who are on the public road, so that it is in that place and not in another different place where the communicative process in which the advertising consists is generated and culminates. And this happens both when the advertising is done by means of supports physically attached to the pavements or roadways and when the supports are attached to the façades of buildings and are perceptible by passers-by or by the occupants of vehicles travelling along them”.

On the other hand, the same aforementioned decisions not only deny the interpretative nature of the Self-Regulation Agreement for Advertising Activity within the scope of Law 5/2002, but also expressly reject its normative value.

Moreover, if the regulation restricting the advertising of alcoholic beverages is aimed at and has as its essential purpose the protection of the right to health, that purpose would be completely circumvented if advertising were to be permitted from media installed on private property but visible and intended to be observed from the public road.

The above reasoning led to the rejection of the arguments in the appeal, which focused on the dismissal of the claim on the grounds that the advertising in question was lawful.

Consequently, the Regional Court only partially upheld the appeal lodged by the representative of the company “BEAM SUNTORY SPAIN, S.L.” against the judgement handed down on 17 July 2019 by Commercial Court no. 3 of Madrid in oral proceedings no. 388/2018.

SAP M 14302/2021 – ECLI:ES:APM:2021:14302 3 December 2021