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1 The Lawyer Quarterly

1 2017

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The misleading perception of the purpose of the protection against misleading advertising by the EU law and its impact on the Czech Republic

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MacGregor Pelikánová R. , Císařová J. , Beneš M.

The Lawyer Quarterly

2017

tom 7

nr 3

145-161

For over three decades, the EU, along with EU member states, has recognized the vital importance of the protection against unfair competition as well as the recognition of the significance of intellectual property. Despite strong rhetoric and developed policies, it appears that the Directives trio - Directive 84/450, Directive 2006/114 and Directive 2005/29 - is neither consistent nor reconciling the involved concepts and priorities with respect to the regime of the protection against misleading advertising. Consequently the national transpositions are struggling and do not lead to easily interpretable norms, e.g. the Czech endeavors in this respect, along with the massive Czech private law re-codification adding even more confusing elements, such as the definition of the average consumer. Certainly, the tension between competition law, unfair competition law, consumer protection law and intellectual property law makes it very challenging to reach a well-balanced harmonized protection against misleading advertising. However, the critical historical study of these Directives and statutes and key interpretation instruments, along with the involvement of the teleological approach, Meta-Analysis and Socratic questions, points to one strong cause of the confusion, if not inconsistency, of the current misleading advertising regime in the EU law, and consequently as well in the Czech law - the misleading perception of the purpose. Thus, it is crucial to finally cross the Rubicon and become clear about the very fundament - about the very purpose of the protection against misleading advertising.