Preface

• Published date: 01 January 2002
• DOI: 10.10520/EJC74013
• Date: 01 January 2002
• Pages: VI-

PREFACE

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

the legal position of comparative advertising not only in South Africa but

also in other countries, self-regulation (in so far as such occurs) also

having been considered.

A large number and variety of countries are embraced on the basis of

factors such as, for example, economic - and/or legal development, culture

and standards of education and sophistication.

With regard to the position in South Africa, not only is the common law (and

especially the civil nature thereof) considered in relation to comparative

advertising, but also statutory law with a view to the limited or restricted

scope of such advertising in view of related legal liability which may be

incurred. Numerous relevant statutory enactments pertaining to e.g. - the

Trade Marks Act, Copyright Act, Designs Act, Business Names Act,

Merchandise Marks Act, Counterfeit Goods Act, Harmful Business

Practices Act, and the Constitution - have been considered.

It is concluded, inter alia, that unlawful comparative advertising appears to

be more comprehensive in South Africa than in the UK and the USA, but

possibly similar to the position in Germany. The common law, obviously

including unlawful competition, as well as statutory enactments of

relevance are comprehensive to the extent that comparative advertising

may be a perilous activity in South Africa as far as the unwary are

concerned.

With regard to the possibility of an effective synthesis based on the critical

and analytical approach of the study concerned, it is submitted that

although comparative advertising lends itself to abuse, there are adequate

legal provisions in South Africa with a view to combating any related abuse

despite the fact that implementation generally needs to be improved. The

self-regulatory system may also be utilized with success especially bearing

in mind the related position in the United Kingdom. Also in view of the Bill

of Rights, and the right to freedom of speech, comparative advertising

should be allowed, subject to the restrictions as set forth in section 36 of

the Constitution. Consequently and also bearing in mind the benefits

which may be derived from comparative advertising, it is finally submitted

that the ASA's Code be amended in order to reflect a more positive attitude

towards comparative advertising.

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