Thus, use by an advertiser of a similar or identical mark may constitute a trade mark within the meaning of the Act, but if the advertiser can prove that his use of such trade mark can satisfy the conditions set out by the Comparative Advertising Directive CADsuch proof will act as a defence against an action brought by the competitor against such use of his mark.
Through direct comparisons, the FTC said, consumers could learn which brand had the lowest price or the most relevant attributes or which tasted best. It is only necessary to provide customers with precise information on the dates when the prices being compared were valid.
Upon complaint, the ASCB is vested with discretion to ensure a common-sense outcome. Although section 7 a of the TMA appears to be much easier to satisfy than section 52 of the Competition Act, a long-standing controversy surrounding the constitutional validity of this section has resulted in most claims for false or misleading advertising being brought, either simultaneously or independently, under section 52 of the Competition Act.
Such a comparison may have the effect of disparaging the competing product, but we know of no rule of law which prevents a seller from honestly informing the public of the advantages of its products as opposed to those of competing products.
Please also refer to the Commerce Commission for information on comparative advertising and pricing under the Fair Trading Act.
Another example took place throughout the late s between the bitter rivals Nintendo and Sega. Truth in Comparative Advertising The other primary rule of thumb when determining the legality of direct comparative advertising is that it must be truthful.
If Pepsi used the logo of Coca-Cola in such a way that consumers might believe that the commercial was actually sponsored by Coca-Cola, that would constitute a breach of advertising law for which Coca-Cola could rightfully sue. As the products being compared are now adequately identified, and the claims not misleading, the revised advertisements are held to have complied with the Trade Practices Act.
Such companies prove the academic view that comparative advertising is more successful when used by established brands,  justified by the credibility and attention an established brand brings.
Comparative advertising may directly compare two or more brands or products, or it may take the form of an indirect comparison.
The advertisement stated that each machine was filled with a two kilogram load. Additionally, the use of truthful comparative advertising should not be restrained by broadcasters or self-regulation entities.
Remember that your competitors know their products better than you do. Some of the conditions set by CAD are that the comparative advertising is not misleading, does not create confusion in the market place between the advertiser and a competitor, or between trade marks, it does not discredit a trade mark, and it does not take unfair advantage of the trade mark.
In explaining why it eliminated "or otherwise" from the final order, the Commission observed that the phrase would have prevented: If Coca-Cola claims that in blind taste tests 9 out of 10 participants chose its products over Pepsi products, it must be able to prove that those tests were actually held.
Comparative advertising occasionally can lead to marketers appearing to fight in the media, such as in the long-running comparative advertising battle between Coca-Cola Co. It should be noted that it is not required to name a specific competitor in order for an advertisement to be considered under this Code.
But beware — a comparative advertising campaign must be executed with caution. Comparative advertising allows a company to directly compare their product with the competition and also provides the company with an opportunity to highlight the areas in which it believes its product is superior.
Comparative advertising is not illegal and there are no special rules to follow when creating comparative advertisements.
Danger -- Comparative Advertising. The defendant 3G also a mobile telephone provider used the name 02 in conjunction with a bubble image followed by a 3 image to state that their services were cheaper than those of the claimants.
Ask for a second opinion if you feel uncomfortable about your advertisement. Seeking a taxonomy One proposed taxonomy of comparative advertising includes "inferiority comparatives," "parity comparatives" and "superiority comparatives.
On the other hand — does the change of prices by a competitor mean that an advertiser who has devoted a lot of time and resources on preparing an advertising campaign in this case Tesco compared prices of around products has to stop the campaign after one day many ads were already printed.
In contrast, under section 7 a of the TMA, the claimant only needs to demonstrate that the advertisement contains a a false or misleading statement, b a statement tending to discredit the business, wares or services of a competitor, and c resulting damage.
Industry codes which restrain comparative advertising in this manner are subject to challenge by the Federal Trade Commission. Assessing effectiveness Although comparative advertising has been studied extensively and is frequently used, its effectiveness remains unclear.
Obvious hyperbole, identifiable as such, is not considered to be misleading Guidelines Comparative elements should be accurate and informative and should offer a product or service on its positive merits. However, industry codes and interpretations that impose a higher standard of substantiation for comparative claims than for unilateral claims are inappropriate and should be revised.
If the advertisement refers to a comparative test, such a test should have been conducted or verified by an independent and objective body, using industry-accepted methodology so there will be no doubt as to the veracity of the test. On the other hand, there are several reasons advertisers might choose to avoid the use of the comparative format in ad campaigns.
Similarly, this has allowed the courts to avoid expressly addressing section 7 a and instead decide cases on the basis of section 52 of the Competition Act. Staying out of trouble and out of court Before commencing any comparative advertising campaign you should: It should be accurate and informative; It should explicitly or by implication make clear the nature of the comparison; and It should not mislead or deceive the consumer, including about other products or services with which comparisons might be made.
Look at your campaign from the consumer's point of view. A disadvantage of comparative advertising would be that proprietors become open to misleading information and slating of their products all together. What is correct when you are planning your campaign may not be correct when the campaign is run.
PI Plus slaughter and may Intellectual Property sector supplement Comparative advertising and trade mark use after O 2 The ECJ has delivered its long-awaited judgment in O 2 Holdings Limited v. comparative advertising is an unethical way of promoting a products or services in business and also we have seen that there are specific provisions to regulate the comparative advertising in order to protect the right of the other.
Sep 10, · For example, where the publisher of a newspaper television listing supplement reproduced the front cover of a competitor's television listing magazine in a comparative advertisement the magazine owner successfully sued for infringement.
Comparative advertising 50 Intellectual Property magazine October cwiextraction.com The pros and cons of negative and comparative advertising Brinsley Dresden of Lewis Silkin LLP discusses the benefits.
Jul 09, · Comparative advertising is often said to be one of the riskiest forms of advertising in a legal context, as it typically involves deliberately rankling your competitor and sometimes treading on their intellectual property rights.
The dangers of comparative advertising News, 25 September NEW YORK: Even though a brand may feel empowered by its category leadership, comparative advertising may not work to the product's advantage, according to a new study in the Journal of Advertising Research.Comparative advertising