Who: I-Optics (Cassini) and Oculus
When: 6 August 2015
Where: District Court of The Hague, the Netherlands
Law stated as at: 5 October 2015
What happened:
I-Optics and Oculus are competitors in the market for optical measuring instruments used by professional ophthalmologists, optometrists and opticians.
I-Optics sells measurement instruments under the name Cassini. I-Optics advertises the Cassini instruments both online (via its website) and offline (in marketing brochures). Both the website and the marketing brochures reach an international group of eye care professionals across the European Union. Four of the disputed advertisements have been included below:
Advertisement I
“The accurate degree and magnitude of astigmatism plays a vital part in the correct positioning of a toric IOL. Cassini’s patented measurement principle measures the axis (figure 1) and magnitude of astigmatism precisely. This makes Cassini the critical addition to your cataract-refractive platform”
Advertisement II – “Cassini outperforms Scheimpflug Better repeatability of determination of axis both in Anterior and TCA”
Advertisement IIIa
Advertisement IIIb
“Cassini’s unsurpassed accuracy and precision make it indispensable for your cataract refractive platform. With its unique astigmatism measurement capabilities Cassini is essential for toric IOl planning. See for yourself at the AAO and join our clinical workshop.”
According to Oculus, the I-Optics Cassini advertisements qualified as misleading advertisements as they contain inaccurate claims and unfair comparisons. For example, I-Optics directly compares Cassini with Oculus’ Pentacam although the parties’ respective instruments each apply a different technique. Consequently, Oculus claimed a pan-European injunction to stop the advertisements as well as a rectification on the I-Optics website.
The District Court of The Hague ruled that the advertisements are indeed misleading and thus unlawful and awarded Oculus’ claims. It reasoned that a pan-European injunction could be awarded since the law on misleading and comparative advertising has been harmonised throughout the EU. As a result, it assumed that the advertisements would be impermissible in other EU Member States. In addition to the impermissibility of the advertisements, the Court also ordered I-Optics to post the following rectification (in English) on its website for a period lasting two months:
We have suggested that Cassini offers superior precision, trueness and accuracy compared to our closest competitors. By judgement of 6th August 2015, the District Court at The Hague has preliminarily ruled that we are not able to substantiate that claim and has therefore ordered us to refrain from further making this claim.
Why this matters:
To our knowledge, this is one of the first judgments in which a pan-European injunction has been awarded in a misleading advertising case. The ruling opens the door to parties who wish to obtain a pan-European injunction against comparative and/or misleading international advertising campaigns. The benefits of starting these proceedings in the Netherlands are the relatively low legal costs and the efficiency and speediness of the proceedings.
