General introduction : Chapter 1

• Date: 01 January 2002
• Pages: 1-4
• Author: Adelheid Janse van Rensburg
• Published date: 01 January 2002
• DOI: 10.10520/EJC74011

CHAPTER 1

GENERAL INTRODUCTION

1. Subject of the research

2. Purpose of the research

3. Methods of research

4. Definitions

4.1 Advertising

4.2 Comparative advertising

4.3 Indirect comparative advertising

4.4 Direct comparative advertising

1. Subject of the research

Advertising, in the sense of a process whereby consumers are acquaint-

ed with particular goods or services with a view to attracting custom,1is

one of the most important and frequently utilized activities in the course of

trade and industry.

Comparative advertising in the sense of a technique of advertising involv-

ing direct or indirect comparisons between goods or services of competi-

tors (whether identifiable or not) or of other business enterprises in the

course of trade or industry,2is not so frequently utilized, probably in view

of the possible legal effect thereof, obviously including the legal liability

which may be incurred.

The legal liability which may be incurred as the result of unlawful and/or

illegal comparative advertising would include civil- and/or criminal liability

and the concept of unlawful - or illegal comparative advertising obviously

embraces advertising contrary to the law in a wide sense, including relat-

ed provisions of statutory- and/or common law: For instance, the legal

consequences of misleading comparative advertising, at least as far as

South African law is concerned, and depending on the facts and circum-

stances, could embrace, for example, fraud, delictual liability, the Law of

Contract, and the current Trade Marks Act.

The interests which enjoy legal protection from unlawful and/or illegal

comparative advertising would conceivably include those of a public

nature such as, for example, the public interest in the protection of or

prosperity of consumers and/or the national economy, and of course the

related interests of individual suppliers of goods and/or services.

The subject of the research concerns essentially the extent and nature of

the legal position in respect of comparative advertising not only in South

Africa, but also in other countries. In so far as self-regulation occurs, such

will also be considered.

1

1 Cf infra.

2 Cf infra.