Summary

• DOI: 10.10520/EJC74000
• Published date: 01 January 2002
• Pages: 139-141
• Author: Adelheid Janse van Rensburg
• Date: 01 January 2002

SUMMARY

The concept, comparative advertising, is defined as a technique of adver-

tising involving direct/indirect comparisons between goods or services of

competitors or of other business enterprises in the course of trade or

industry. It is submitted that this concept should be extended to also

include comparisons between goods or services belonging solely to the

advertiser.

The research with regard to the USA included the common law, the trade

commissions and section 43(a) of the Lanham Act. The common law per-

taining to unfair competition could be relied upon in the case of injurious

falsehoods. Haydon submits that a commercial could be typified and

banned as unfair competition whenever a competitor publishes a dis-

paraging representation about the plaintiff’s goods or services which is

likely to deceive or mislead prospective purchasers to the plaintiff’s likely

commercial detriment. A plaintiff can also take recourse under section

43(a) of the Lanham Act, when inter alia a false or misleading description

of fact or false or misleading representation of fact was made and which

would be likely to cause confusion or mistake etc. A plaintiff who takes

recourse under this section does, however, bear a heavy burden of proof.

The Federal Trade Commission’s Code encourages comparative adver-

tising and the FTC only acts in the public interest where

“a reasonable consumer is likely to be misled and that the adver-

tisement played a material role in the consumer’s purchasing

choice.”

The International Trade Commission does not encourage comparative

advertising and this commission receives complaints from plaintiffs who

were prejudiced by foreign competitors’ advertisements. It thus seems

that comparative advertising of a truthful and honest nature is favoured in

the USA as being in the public interest, but subject to reasonableness and

after consideration of the respective interests involved.

It seems as though the European countries can be divided according to

their attitudes towards comparative advertising as follows:

1. Liberal policies towards comparative advertising:

United Kingdom and Portugal

2. Allow comparative advertising subject to restrictions:

France, Spain and Denmark

3. Explicitly ban comparative advertising:

Belgium and Luxembourg

4. Enacted legislation which makes comparative advertising nearly

impossible: Italy and Switzerland

5. No clear legal provisions:

The Netherlands and Greece.

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