In Belgium, a 1991 law prohibits comparative advertising where the other vendor is identifiable. In the Netherlands, no outright prohibition of comparative advertising exists; the law only prohibits disparaging and misleading advertising. The Netherlands, however, complies with the Benelux Uniform Trademark Act which forbids the use of another’s trademark in advertising.

Italy does not prohibit comparative advertising, as long as it is not misleading. Spain adopted a more lenient position. Article 10 of its 1991 Law on Unfair Competition allows some comparative advertising but “forbids comparisons that relate to factors that are not similar, relevant or comparable.”

In contrast, Portugal allows, but strictly limits, the practice of comparative advertising. In 1991, Greece similarly adopted a Consumer Protection Law that allows the limited use of comparative advertising. Denmark generally allows comparative advertising provided that it is not misleading or disparaging.

Although there were some, especially the Benelux counties and Germany, who did not welcome comparative advertising and who was in opposition to the new Directive which allowed it, such advertising was regarded as necessary. On January 18, 1992, the French amended their civil code to allow comparative advertising as long as it is “fair, true, objective and not misleading to consumers.” Prior to 1994, comparative advertisement was relatively uncommon in the UK. This was partly due to the fact that such campaigns were fraught with legal difficulties since a reference to competitor’s trademark brought with it the risk of an action for trademark infringement.

Since the implementation of the Trade Marks Act 1994 (TMA) in the UK which permits the use of a third party’s registered trademark subject to certain condition, comparative advertising has become more widespread, particularly in fiercely competitive markets, such as the mobile telephone market and indeed the telecom industry generally. In the case of McDonalds Hamburgers Ltd. v Burger King Ltd by saying ‘this is not just a Big Mac’ Burger King attempted but failed to differentiate the competing products. The failure resulted in a finding that a misrepresentation had been made as consumers would think that the two burger products were related rather than competing.

Continue reading:
Part-1: Background of Comparative Advertising in light of Indian trademark and patent Laws
Part-2: Introduction Comparative Advertising in legal framework.
Part-3: Comparative advertising and its connotation in Constitution
Part-4: Legal provisions regarding trademark in India with reference to Comparative advertising
Know Indian Trademarks Act, 1999
Part-5: Comparative Advertising and Infringement of Trademark
Part-6: WHY USE COMPARATIVE ADVERTISEMENT
Part-7: Position across world on Comparative Advertisement
Part-8: Case study: Regarding comparative advertising
Part-9: Takeaway on Comparative advertising


1 Simone VerducciGalletti and Marco Lucchini, The interplay between comparative advertising and unfair competition law, World Trademark Review magazine issue 63,November 2016. (https://www.bugnion.eu/approfondimenti/documenti/wtr63_TheInterplayBetweenComparativeAdvertisingAndUnfairCompetitionlaw.pdf)

2 Joseph R. Priester & John Godek, Brand Congruity and Comparative Advertising: When and Why Comparative Advertisements Lead to Greater Elaboration, JOURNAL OF CONSUMER PSYCHOLOGY, 14(1&2), 115-123. (https://msbfile03.usc.edu/digitalmeasures/priester/intellcont/2004jcpcongruity-1.pdf)

 

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Kajal Dubey

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