Comparative advertising: a comparative legal study

[摘要] English: The concept, comparative advertising, is defined as a technique of advertisinginvolving direct/indirect comparisons between goods or services of competitors orof other business enterprises in the course of trade or industry. It is submittedthat this concept should be extended to also include comparisons between goodsor services belonging solely to the advertiser.The research with regard to the USA included the common law, the tradecommissions and section 43(a) of the Lanham Act. The common law pertainingto unfair competition could be relied upon in the case of injurious falsehoods .. Haydon submits that a commercial could be typified and banned as unfaircompetition whenever a competitor publishes a disparaging representation aboutthe Plaintiff's goods or services which is likely to deceive or mislead prospectivepurchasers to the plaintiff's likely commercial detriment. A plaintiff can also takerecourse under section 43(a) of the Lanham Act, when inter alia a false ormisleading description of fact or false or misleading representation of fact wasmade and which would be likely to cause confusion or mistake etc. A plaintiff whotakes recourse under this section does, however, bears a heavy burden of proof.The Federal Trade Commission's Code encourages comparative advertising andthe FTC only acts in the public interest wherea reasonable consumer is likely to be misled and that the advertisement playeda material role in the consumer's purchasing choice.The International Trade Commission does not encourage comparativeadvertising and this commission receives complaints from plaintiffs who wereprejudiced by foreign competitors' advertisements. It thus seems thatcomparative advertising of a truthful and honest nature is favoured in the USA,as in the public interest, subject to reasonableness and after consideration of therespective interests involved. It seems as though the European countries can be divided according to theirattitudes towards comparative advertising as follows:1. Liberal policies towards comparative advertising:United Kingdom and Portugal2. Allow comparative advertising subject to restrictions:France, Spain and Denmark3. Explicitly ban comparative advertising:Belgium and Luxembourg4. Enacted legislation which makes comparative advertising nearly impossible:Italy and Switzerland5. No clear legal provisions:The Netherlands and Greece.The United Kingdom has taken a more liberal stance towards comparativeadvertising during the last few years, as can be seen from the judgements givenin the Barclays Bank-case, the Vodafone Group-case and the BritishTelecommunications-case. The courts used the objective test to determine ifthere was 'honest use' of the registered trade marks. The court found in theVodafone Group-case that a plaintiff has to show thatthe comparison is significantly misleading on an objective basis to a substantialportion of the reasonable audience.The United Kingdom is, however, a member of the European Union and it isenvisaged that this country will adopt a stricter approach towards comparativeadvertising in future due to the European Directive on Comparative Advertising.In the United Kingdom comparative advertising issues are mainly successfullydealt with by self-regulatory bodies.The European Directive on Comparative Advertising sets out a few requirementsto which a comparative advertisement must adhere before such will be allowed.The member states have to adopt legislation to accommodate theserequirements. It is envisaged that most of these countries will interpret theserequirements in a strict sense and will accordingly have a more conservative approach towards comparative advertising.The German law distinguishes between personal, imitative and criticalcomparative advertising. It seems as though direct comparative advertising(presupposing identifiable competitors) is lawful should such advertisementsconstitute a truthful comparison of product categories, relying on related andsubstantiated merits that are not misleading. Other forms of comparativeadvertising whereby competitors are not identified or identifiable or involved at allseems to be lawful, however, on condition that such advertisements are truthful,factual and not misleading.. The Japanese culture has not taken kindly to comparative advertising in the past.It does, however, appear as if the younger generation is more favourablydisposed thereto. Thus, this negative attitude towards comparative advertisingmay change towards the better in the future.Unlawful comparative advertising appears to be more comprehensive in SA thanin the UK and the USA, but possibly similar to that in Germany.The common law, obviously including unlawful competition, as well as statutoryenactments of relevance are comprehensive to the extent that comparativeadvertising may be a perilous activity in South Africa as far as the unwary areconcerned. It is submitted that section 34(1 )(c) of the Trade Marks Act (the socalled 'dilution section') should be amended to read: oo. be unfairly detrimental to...with a view to the promotion of lawful and fair comparative advertising.Although comparative advertising lends itself to abuse, it is submitted that thereare adequate legal provisions with a view to combating any related abuse despitethe fact that implementation generally needs to be improved. The self-regulatorysystem can be used with success if it is conducted in a similar way to that of theUnited Kingdom. Also in view of the Bill of Rights, and the right to freedom of speech, comparative advertising should be allowed, subject to the restrictions asset out in section 36 of the Constitution. Consequently and also bearing in mindthe benefits which may be derived from comparative advertising, it is finallysubmitted that the ASA's Code be amended in order to reflect a more positiveattitude towards comparative advertising.

[发布机构] University of the Free State