Comparative advertising: a comparative legal study

English: The concept, comparative advertising, is defined as a technique of advertising involving direct/indirect comparisons between goods or services of competitors or of other business enterprises in the course of trade or industry. It is submitted that this concept should be extended to also include comparisons between goods or services belonging solely to the advertiser. The research with regard to the USA included the common law, the trade commissions and section 43(a) of the Lanham Act. The common law pertaining to unfair competition could be relied upon in the case of injurious falsehoods . . Haydon submits that a commercial could be typified and banned as unfair competition whenever a competitor publishes a disparaging representation about the Plaintiff's goods or services which is likely to deceive or mislead prospective purchasers to the plaintiff's likely commercial detriment. A plaintiff can also take recourse under section 43(a) of the Lanham Act, when inter alia a false or misleading description of fact or false or misleading representation of fact was made and which would be likely to cause confusion or mistake etc. A plaintiff who takes recourse under this section does, however, bears a heavy burden of proof. The Federal Trade Commission's Code encourages comparative advertising and the FTC only acts in the public interest where "a reasonable consumer is likely to be misled and that the advertisement played a material role in the consumer's purchasing choice." The International Trade Commission does not encourage comparative advertising and this commission receives complaints from plaintiffs who were prejudiced by foreign competitors' advertisements. It thus seems that comparative advertising of a truthful and honest nature is favoured in the USA, as in the public interest, subject to reasonableness and after consideration of the respective 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 Portugal 2. Allow comparative advertising subject to restrictions: France, Spain and Denmark 3. Explicitly ban comparative advertising: Belgium and Luxembourg 4. Enacted legislation which makes comparative advertising nearly impossible: Italy and Switzerland 5. No clear legal provisions: The Netherlands and Greece. The United Kingdom has taken a more liberal stance towards comparative advertising during the last few years, as can be seen from the judgements given in the Barclays Bank-case, the Vodafone Group-case and the British Telecommunications-case. The courts used the objective test to determine if there was 'honest use' of the registered trade marks. The court found in the Vodafone Group-case that a plaintiff has to show that "the comparison is significantly misleading on an objective basis to a substantial portion of the reasonable audience." The United Kingdom is, however, a member of the European Union and it is envisaged that this country will adopt a stricter approach towards comparative advertising in future due to the European Directive on Comparative Advertising. In the United Kingdom comparative advertising issues are mainly successfully dealt with by self-regulatory bodies. The European Directive on Comparative Advertising sets out a few requirements to which a comparative advertisement must adhere before such will be allowed. The member states have to adopt legislation to accommodate these requirements. It is envisaged that most of these countries will interpret these requirements in a strict sense and will accordingly have a more conservative approach towards comparative advertising. The German law distinguishes between personal, imitative and critical comparative advertising. It seems as though direct comparative advertising (presupposing identifiable competitors) is lawful should such advertisements constitute a truthful comparison of product categories, relying on related and substantiated merits that are not misleading. Other forms of comparative advertising whereby competitors are not identified or identifiable or involved at all seems 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 favourably disposed thereto. Thus, this negative attitude towards comparative advertising may change towards the better in the future. Unlawful comparative advertising appears to be more comprehensive in SA than in the UK and the USA, but possibly similar to that in Germany. The common law, obviously including unlawful competition, as well as statutory enactments of relevance are comprehensive to the extent that comparative advertising may be a perilous activity in South Africa as far as the unwary are concerned. It is submitted that section 34(1 )(c) of the Trade Marks Act (the so called '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 there are adequate legal provisions with a view to combating any related abuse despite the fact that implementation generally needs to be improved. The self-regulatory system 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 as set out in section 36 of the Constitution. Consequently and also bearing in mind the benefits which may be derived from comparative advertising, it is finally submitted that the ASA's Code be amended in order to reflect a more positive attitude towards comparative advertising.