By Fernanda Magalhães
June 19, 2023
Brazilian Superior Court recognizes the legitimacy of Heinz’s use of exaggerated advertising
The Brazilian Superior Court (“STJ”) has recently ruled on puffery in advertising in a case between Unilever (owner of the Hellmann’s brand) and Heinz involving the use of the advertising claims “Heinz, the world’s most consumed ketchup” and ‘Heinz, better in everything it does‘.
In its decision, the Court upheld lower court decisions and asserted that the claim ‘Heinz, better in everything it does’ cannot be objectively measured by consumers as it represents a subjective opinion from manufacture about its products. As such, use of the expression constitutes puffery, a known advertising technique of exaggerating the attributes of products or services used to attract consumer´s attention. The Court highlighted that it should be reasonable for consumers to expect that manufactures will boast about their own goods or services and that prohibiting the use of such advertising claims inadequately disqualifies the judgement of average consumers.
Regarding the claim ““Heinz, the world’s most consumed ketchup”, the Court also upheld lower courts´ decisions finding that Heinz had provided sufficient evidence to demonstrate the truthfulness of the claim as its ketchup was in fact the best-selling ketchup at the time of the ad campaign. Further, the Court maintained appeal court´s decision finding that Heinz should not be required to apply disclaimers with information about the surveys which substantiated the advertising expression as the claim was in fact honest.
The battle between the companies was first brought before the Brazilian Advertising Self-Regulation Council (“CONAR”) which had granted an injunction to Unilever against Heinz’ for use of the claims. As a result, Heinz filed a declaratory judgment before the São Paulo State Court to challenge CONAR’s decision and obtain validation for its use of the claims.
The lower court decided in favor of Heinz finding that the claims were not misleading but determined the application of disclaimers near the claim “Heinz, the world’s most consumed ketchup” to inform consumers of the basis of assertion. The State Court of Appeals upheld the decision but rejected the disclaimer requirement as it considered that sufficient evidence has been provided by Heinz to demonstrate the truthfulness of the claim.
Please contact our Marketing & Entertainment Law team if you have questions or would like to learn more about the matter.
Last by Fernanda Magalhães
August 9, 2024
You can’t spell Olympics without IP
Our partner Fernanda Magalhães was invited by the American radio NPR to participate in the podcast “The Indicator” from Planet Money. She … You can’t spell Olympics without IP
July 24, 2024
Kasznar Leonardos will attend the 44th ABPI Congress
The 44th International Congress on Intellectual Property, promoted by the Brazilian Intellectual Property Association (ABPI) is coming, and Kasznar Leonardos’ presence is guaranteed! … Kasznar Leonardos will attend the 44th ABPI Congress
July 5, 2024
Kasznar Leonardos was ranked by Leaders League Brasil 2024
We are pleased to announce that we have been ranked by Leaders League Brasil, a reputable legal publication, for another year. In … Kasznar Leonardos was ranked by Leaders League Brasil 2024
- Claudio Roberto Barbosa
- Elisabeth Kasznar Fekete
- Fernanda Magalhães
- Felipe de Araújo Monteiro
- Filipe da Cunha Leonardos
- Flávia Benzatti Tremura Polli Rodrigues
- Gabriel Francisco Leonardos
- João Luis D’Orey Facco Vianna
- Luciana Yumi Hiane Minada
- Maria Pia Guerra
- Nancy Satiko Caigawa
- Rafael Lacaz Amaral
- Rosane Tavares
- Tatiana Almeida Silveira
- Viviane Trojan
- Larissa Ferreira Martins