The app is called Burn That Ad and is (supposedly) available only in Brazil.

At first glance, it seems to be an ingenious marketing stunt, cleverly using new technologies and gamification (the application of game-design elements and game principles in non-game contexts, engaging users in activities desired by the app’s designers which users might otherwise find boring or routine). Burger King’s approach is nothing new, as the chain is famous for its controversial and often aggressive advertising mainly targeting its biggest rival, McDonald’s. But leaving aside the Brazilian burger wars, how would such an application or campaign be evaluated in the light of Polish law? Could it be considered contrary to principles of fair competition within the meaning of the Unfair Competition Act? Let’s consider such a situation, assuming the identical application were made available to users in Poland by a domestic company.

The aim of the app is the virtual burning of ads (or parts thereof containing logos) of direct competitors operating on the same market. According to the message built around the app, destroying the competitor’s advertising materials is not only fun but also provides the user a tangible benefit. Participation in the campaign is rewarded by the provider of the app with a free product. This is supposed to encourage frequent use of the application and, at the same time, promote the company’s products.

Under Polish law, the app and the associated promotional message could be found to be at least advertising contrary to fair practice, or more broadly an action of a business contrary to fair practice.

The case law indicates that fair advertising should be positive in nature, i.e. it should aim at encouraging customers to buy the advertiser’s products and not at discouraging the purchase of competitors’ products by undermining their reliability and quality (e.g. Warsaw Court of Appeal judgment of 15 May 1998, case no. I ACa 367/98). But discouraging the purchase of competitors’ products seems to be exactly the aim of this app and its message. The case law indicates that the abuse of negative elements (which is how the burning of competitors’ ads to receive a prize should be treated) may contribute to a finding that the advertising violates the fair practice clause. The fact that Burger King is somehow identified with fire and that flames are an element of its trademarks and a constant feature of its ad campaigns would not be an excuse. Although only virtual, the means chosen in the message (destruction, burning of competitors’ logos) may be considered disproportionate or too brutal, considering that they are meant to advertise a fast-food chain and not, for example, to publicise a socially significant problem.

Violation of fair practice is assessed not only from the point of view of the content but also of the purpose of competitive activities (judgment of Province Administrative Court in Warsaw of 7 November 2007, case no. I ACa 334/07, LEX no. 516548). The app encourages users to take actions that, if not merely virtual, would have to be considered acts of hooliganism, e.g. the crime of destruction of someone else’s property. Although, of course, there is no physical destruction in this case, the encouragement of virtual burning of competitors’ ads seems to have a general, even symbolic message. It can be understood for example as calling for the elimination of a competitor from the market or encouraging consumers not to buy from it. The fact that there is no “physical” destruction does not preclude a finding that it is contrary to fair practice.

Additionally, the use of competing businesses’ trademarks as triggers generating fire for the sole purpose of virtual burning is difficult to consider a good market practice. We could consider whether, if they are reputed marks, they are being deprecated or ridiculed, especially if we consider the purpose (burning them and getting in return a free sandwich from a competitor) and the surrounding circumstances (the accompaniment of cheerful music, the image of a free “trophy” sandwich appearing after burning a competitor’s ad, etc). (We write more about trademarks as triggers of digital content, with other examples of using AR in competition, in the post Infringements of intellectual property rights in augmented reality.)

It seems that the use of such an app and related promotion in Poland by a company could open the door to application of the Unfair Competition Act by competitors whose interests have been threatened or infringed. In particular, we refer to Art. 16(1)(1) (advertising contrary to fair practice) and Art. 3(1) (general clause on fair practice), and possibly other provisions of the act. It should be stressed that an act of unfair competition with regards to advertising may be committed not only by the advertiser, but also by an ad agency or other company preparing the ad (Art. 17).

The use of augmented reality by companies in advertising and sales offers a number of opportunities. More and more often, we talk about the whole segment of augmented advertising and augmented sales. It is hard to find a better technology than AR to, for example, increase display space without renting additional floor area, expand advertising space without renting additional space, and reduce logistics costs and returns by offering customers the option to pre-install the product in AR. Industries that can particularly benefit from this technology include fashion, beauty, home, automotive, and real estate. However, as the Burger King example shows, augmented advertising may also be a tool for competitive struggle. If the methods used infringe on fair practice, the risk of liability for unfair competition, among other claims, must be weighed.

Lena Marcinoska