Conclusion and summary : Chapter 11

• Published date: 01 January 2002
• Date: 01 January 2002
• Author: Adelheid Janse van Rensburg
• DOI: 10.10520/EJC74001
• Pages: 130-138

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CHAPTER 11

CONCLUSION AND SUMMARY

It appears that the definition of comparative advertising by De Jager and

Smith,1embraces most of the forms of such concept encountered in South

Africa and elsewhere. In essence such definition seems to reflect com-

parative advertising as being a technique of advertising involving direct or

indirect comparisons between goods or services (whether well-known or

not) of competitors (whether identifiable or not) or of other business enter-

prises (whether identifiable or not) in the course of trade or industry. The

term advertising, which appears in the aforegoing definition, seems to nat-

urally refer to a process whereby consumers are acquainted with particu-

lar goods or services with a view to attracting custom.2

It also appears that the related definition of Webster and Page3either

specifically or by implication, includes direct or indirect comparisons

between goods or services (whether well-known or not) of non-competi-

tors and competitors (whether identifiable or not). It is submitted further-

more that, should the last two words appearing in the said definition of

Webster and Page, viz. “of another”, be deleted together with the word

“the” (being the last “the” in the definition and appearing immediately in

front of “goods”) and “the” be substituted by the word, “other”, such defin-

ition could then be extended to include not only comparisons between the

goods or services of non-competitors or competitors, but also compar-

isons between similar goods or services or other goods or services

belonging solely to the advertiser.4

With regard to the position in the USA, since the first court case in 1910

concerning comparative advertising, the subject in question became hotly

debated and was followed by various developments in that sphere of the

law. The common law pertaining to unfair competition could be relied upon

in the event of an advertisement defaming a business or disparaging the

goods of a business falsely, the action in tort pertaining to injurious false-

hood, apparently having been applied most frequently of all the common

law actions for the last one and a half centuries.

A consideration of the court case Smith v Chanel Inc. (1968) brings to light

that the courts have also generally confined legal protection to the trade-

mark’s source identification function for reasons grounded in the public

policy favouring a free, competitive economy. Another case in 1959

reflects the opinion to the effect that

“imitation is the lifeblood of competition”

and that it is the unimpeded availability of substantially equivalent units

that permit the normal operation of supply and demand to yield the fair

price society must pay for a given commodity.

1 See supra.

2 Cf. supra.

3 See supra.

4 Cf. position in Germany under the heading “Critical comparative advertising”.