Comparative Advertising – accepted and controversial.

The EU supports comparative advertising; it creates awareness amongst consumers of comparable products and encourages competition between suppliers of goods and services to the consumers’ advantage.

However, comparative advertising can, at least indirectly, have as its object to cause damage to the reputation and advertising efforts of a competitor.

Advertisers are often also fairly ingenious in formulating comparisons that maximise the outcome in a favourable way for their own product. This might confuse the public regarding the origin of the products. Therefore, the Directive provides a number of precise criteria that must be fulfilled for comparative advertising to be permitted.

Marketing Law/Trade Mark Law.

Comparative advertising may legally refer to a competitor’s protected trade mark. However, this might cause an infringement of Trade Mark Law. Where comparative advertising is concerned, in addition to Marketing Law, one must therefore always take Trade Mark Law into consideration.

A Trade Mark owner cannot prevent the use of identical trade marks or similar signs in comparative advertising if the precise criteria relating to comparative marketing are met.  However, this only applies if there does not exist a likelihood of confusion on the part of the customers. The two types of legislation complement each other and the concept of confusion is interpreted in an identical way.

How the jurists interpret what is said in Advertising.

The Law is less interested in the intentions of the advertiser and looks more at the group of people reached by its advertising. The target group is broadly defined. In Consumer Marketing the general public is normally presumed to be the relevant public.

1. Advertising may be deemed to be misleading, even when the advertiser does not intend to mislead and even if he is unaware of the fact that the advertising might be misleading. On the other hand, it is clear that advertising with blatant overstatements i.e. obviously not to be taken seriously, is not deceiving.

2. The reference point in all interpretations is the average member of the target group. The EU Courts have a very broad definition, including everyone capable of being affected by the advert.

3. In contrast to this broad public definition, the Courts have, however, set a high standard thereby protecting only the circumspect and knowledgeable consumer rather than the credulous and ignorant.

4. For specialised groups and professionals, the average member of the target group is seen as even more well-informed and critical than the average consumer and not so easily misled either.

5. The scope of the prohibition is narrowed down by the definition of misleading advertisement. This prescribes that the advertising must encompass some form of deceptive advertising which, in turn, has the capacity to influence the economic activities of the addressee and may cause damage to a competitor.

6. In court, the burden of proof is reversed; it is presumed that the advertiser’s statement is contrary to the Directive and it is up to this party to prove the opposite.

Marketing Law Attorneys, Fruebjergvej 3, Postbox 132, 2100 Copenhagen Ø, Denmark. Malmö Börshus, Box 269, 211 20 Malmö, Sweden.

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