An interesting ruling by the Paris Court of Appeal was handed down last December (CA Paris – Pôle 5 – Chambre 2 – Judgment of 8 December 2023) in a dispute between Ferrero and Rigoni di Asiago.
Rigoni di Asiago markets a hazelnut spread in France under the brand name Nocciolata and advertises it in the form of an ad featuring a child eating a slice of bread with a monkey, with a voiceover stating “Nocciolatta is palm oil free”.
Ferrero considered that the advertisement directly referred to the controversy surrounding the use of palm oil in the production of its Nutella spread and constituted a denigration of the product, they sued Rigoni for denigration and parasitism.
After an initial ruling against them, Ferrero appealed, attempting to draw a parallel between comments made by Internet users linking the presence of the orangutan and the deforestation allegedly linked to palm oil, to demonstrate the denigrating nature of this advertising message.
Rigoni supported its case with a consumer survey, which showed that the advertisement did not raise any controversy about palm oil, and that Ferrero was not mentioned or named in the advertisement.
As a result, Ferrero’s claims for disparagement and unfair competition were once again dismissed.
Under French law, disparagement meets the requirements of the rules of civil liability, i.e. damage + fault + a causal link between the two. In principle, case law requires three conditions to be met: public statements; an identifiable company, brand or product; and a pejorative character.
In this case, neither Ferrero nor its brand Nutella were identified, and the speech was not derogatory in any way.
The Italian company has been tarnished by this decision, which highlights a certain sensitivity on the part of the operator on the subject of palm oil.
Severine Fitoussi
Trademark & Design Attorney and European Counsel with the EUIPO
