1 January 2010TrademarksRahul Chaudhry

Comparative advertising

When advertisers promote their brands, it may be tempting to disparage rival products. But brands should take care that any comparisons they make are justified, says Rahul Chaudhry.

The relationship between suppliers and customers in the business market is symbiotic in nature: suppliers need customers as much as customers need suppliers. Similarly, when it comes to advertising, the relationship between the two parties is no different. Advertising is one such tool of business policy that allows suppliers to disseminate information and promote the attributes of their products and services to enable customers to make ‘informed choices’ about the products they wish to purchase.

Customers depend on such information presented in advertisements to make an informed choice, but it is the supplier that determines the content, accuracy, style and placement of that advertising material. With the business market now at the pinnacle of its competitive aggressiveness, the concept of ‘comparative advertising’ has emerged as a strategic tool affecting the supplier/customer.

Comparative advertising compares the features of the advertiser’s products with those of its competitors. The comparative claims in such advertisements are variable in nature: the comparison can be explicit or implicit, and with a superiority or equivalence claim relying on positive or negative comparisons.

Such comparisons are embraced as long as they promote healthy competition, without damaging the reputation or the goodwill of the brand and the brand owner. The instant a comparison is misleading, unfair and deceptive, it can lead to trademark infringement.

In McDonalds v. Burger King, Justice Whitford warned that: “Advertisements are not to be read as if they are testamentary provision in a will or a clause in some agreement with every word being carefully considered and the words as a whole being compared.” Yet, comparative advertisements have led to a lot of litigation questioning the veracity of such comparisons.

Any untrue statement in the advertisement that tends to harm the reputation of someone else’s business, brand or product is called ‘disparagement’. Black’s Law Dictionary defines ‘disparagement of goods’ as: “A statement about a competitor’s goods which is untrue or misleading and is made to influence or tends to influence the public not to buy.”

Originating in tort law, the law of disparagement recognises ‘malice’ as an essential ingredient. So to decide the question of disparagement, we have to locate malice as elucidated in Pepsi Company, Inc. and others v. Hindustan Coca-Cola Limited and Anr:

Already registered?

Login to your account

To request a FREE 2-week trial subscription, please signup.
NOTE - this can take up to 48hrs to be approved.

Two Weeks Free Trial

For multi-user price options, or to check if your company has an existing subscription that we can add you to for FREE, please email Adrian Tapping at atapping@newtonmedia.co.uk