Qualification of information and images as advertising: criteria according to the legislation of Ukraine and judicial practice

Having studied the criteria for the classification of information and images as advertising, established by the law of Ukraine and its judicial case-law, the author comes to the conclusion that the purpose of a certain image or information to attract attention of consumers to specific economic benefits or a business entity that can provide them on a commercial basis (relation to the business activity) is the determinative criterion for distinguishing between advertising and information and images that are not of advertising nature. Advertising must indicate a specific, individually defined business entity, or a specific, individually defined product (service) with an indication of the name, quality properties, country of origin, manufacturer or other identifying features. Instead, for example, the image of a certain object with exclusively generic features, including as part of the design of the interior of the room, is not recognized as advertising. Moreover, information about the manufacturer of the product or service and/or about the very the product or service in places where this product or service is sold or provided to the consumer, as well as directly on the product itself and/or its packaging, is not considered to be advertisement as well. At the same time, the decision to recognize information or images as advertising could be made, in particular, if they either promote the product or its manufacturer outside the places of trade. Also, it should be taken into account that despite the fact that a sign or a plate with information about the registered name of a person, signs for goods and services belonging to this person, the type of his activity and working hours have the purpose of introducing or increasing the awareness of consumers about a business entity, this information is not considered advertising due to the fact that, among other things, it does not reflect an invitation to purchase goods or services from it.