Car perfumes… ‘rubbing under the nose’

Expressions and sayings or ‘smells’ are often negative, such as ‘rubbing something under the nose’ or ‘it’s coming out of my nose’. With this approach, plaintiff E1 sought to take action against defendant G, who made the following video advertisement:

(i) “Are you still using those old-fashioned air fresheners or fake fragrances…” [ó Influencer Van G shows a bottle of car perfume, makes a disapproving gesture with her finger, and drops the product into her lap.] (ii) “…that disappear from your car after a few days.” [ó The bottle of car perfume reappears when influencer Van G takes it from the rearview mirror of her car]. (iii) “Well, there must be something better” [the box containing the Van G car perfume appears]. (iv) This is Van G’s Aroma Diffuser. A stylish gadget for your car that works much better and exudes luxury.”[ [ó The influencer shows the contents of a box]. (v) “This is what’s in the box and it looks so cute. It’s super simple, you click it into your air vent, press the button, and it does the rest. With the motion sensor, the scent is only used when you’re driving. In addition, each scent has its own intensity, which is super handy. (…)”

How does your competitor treat you via an influencer?

The court ruled on this on July 9, 2025. The legal criteria were comparative advertising and trademark law. To what extent was this influencer story, which was ‘told in vivid detail’, that the scent of E1 was ‘old-fashioned’ and a ‘fake scent’ compared to the ‘flashy’ Arom Diffuser from Van G?

It is clear here that the influencer refers to E1’s product in a negative way—and thus to the brand name. The context is clearly comparative, and Van G’s product is presented as superior.

• E1 then claimed that this constituted unlawful comparative advertising and an infringement of its trademark rights. E1 sought an injunction against future statements, damages of €9,500, a public correction, and reimbursement of legal costs.
• Van G countered that there was no comparative advertising, that the perfume brand used was unbranded, and that E1 was abusing procedural law.

The court’s ruling on comparative advertising

Thus, yes, comparative advertising took place. The brand name of E1 was visible in the video, which makes the product traceable to E1. The advertising is unlawful because it is unnecessarily negative and does not offer an objective comparison. The framing of the E1 product as “old-fashioned” and “counterfeit” is considered disparaging and careless.

This constitutes an infringement of trademark law (based on Article 2.20(2)(a) of the BVIE). E1’s trademark was displayed in Van G’s video without permission, although other grounds for trademark infringement, such as likelihood of confusion or the reputation of the trademark, were insufficiently substantiated and rejected in this case.

A ban? Yes, the court has imposed a ban on Van G for future use of impermissible comparisons or trademark infringement with regard to E1. A

correction? No, no correction has been ordered. This was almost the case, but because E1 had not specified sufficiently how this should look, it was rejected.

Damages? The claim for damages of €9,500 is rejected. E1 had not provided sufficient evidence of actual damage (e.g., substantiated sales figures or damage to reputation).

Legal costs? Both parties will bear their own legal costs, as both were found to be partly in the right and partly in the wrong.

Questions

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