Comparative advertising, or combative advertising, is an advertisement in which a particular product, or service, specifically mentions a competitor by name for the express purpose of showing why the competitor is inferior to the product naming it. Also referred to as "knocking copy", it is loosely defined as advertising where "the advertised brand is explicitly compared with one or more competing brands and the comparison is obvious to the audience".T.E. Barry & R.L. Tremblay, "Comparative advertising: perspectives and issues", Journal of Advertising, Vol. 4, No. 4, 1975, pp. 15-20. An advertising war is said to be occurring when competing products or services exchange comparative or combative advertisements mentioning each other.
This should not be confused with parody advertisements, where a fictional product is being advertised for the purpose of poking fun at the particular advertisement, nor should it be confused with the use of a coined brand name for the purpose of comparing the product without actually naming an actual competitor. ("Wikipedia tastes better and is less filling than the Encyclopedia Galactica.")
In the United States, the Federal Trade Commission (FTC) defined comparative advertising as "advertisement that compares alternative brands on objectively measurable attributes or price, and identifies the alternative brand by name, illustration or other distinctive information".Federal Trade Commission Commercial Practice Rule 16 CFR §14.15 n 1 (2002) This definition was used in the case Gillette Australia Pty Ltd v Energizer Australia Pty Ltd.(2002) 193 ALR 629 Similarly, the Law Council of Australia recently suggested that comparative advertising refers to "advertising which include reference to a competitor's trademark in a way which does not impute proprietorship in the mark to the advertiser".P. Armitage in M.A. Murphy, "Legal aspects of comparative advertising and a strategy for its use", Queensland University of Technology law journal, Vol. 12, 1996, pp. 41-59.
Comparative advertisements could be either indirectly or directly comparative, positive or negative, and seeks "to associate or differentiate the two competing brands".B. Mills, "Comparative advertising: should it be allowed?", European Intellectual Property Review, Vol. 17, No. 9, 1995, pp. 417-430. Different countries apply differing views regarding the laws on comparative advertising.
History The earliest court case concerning comparative advertising dates back to 1910 in the United States – Saxlehner v Wagner.16 US 375, 30 S.Ct. 298, 54 L.ED 525 (1910)B. Mills, "Comparative advertising: should it be allowed?", European Intellectual Property Review, Vol. 17, No. 9, 1995, pp. 417-430. Prior to the 1970s, comparative advertising was deemed unfeasible due to related risks. For instance, comparative advertising could invite misidentification of products, potential legal issues, and might even win public sympathy for their competitors as victims.
In 1972, the FTC began to encourage advertisers to make comparison with named competitors, with the broad, public welfare objective of creating more informative advertising.F. Beard, "Comparative advertising wars: an historical analysis of their causes and consequences", Journal of Macromarketing, Vol. 30, No. 3, 2010, pp. 270-286. The FTC argued that this form of advertising could also stimulate comparison shopping, encourage product improvement and innovation, and foster a positive competitive environment.C.L. Beck-Dudley & T.G. Williams, "Legal and public policy implications for the future of comparative advertising: a look at U-Haul v Jartran", Journal of Public Policy & Marketing, Vol. 8, No. 1, 1989, pp. 124-142. However, studies have shown that while comparative advertisements had increased since 1960, the relative amount of comparative advertising is still small.D.W. Jackson Jr., S.W. Brown & R.R. Harmon, "Comparative magazine advertisements", Journal of Advertising Research, Vol. 19, No. 6, 1979, pp.21-26.
Legal issues Argentina In Argentina, there is no specific statute dealing with comparative advertising (so it is not forbidden), but there are clear jurisprudential rules based on unfair competition law. If in some manner an advertisement is proven to be unfair or exceeds ethical standards by hiding the truth or omitting some essential aspect of the comparison, it is probable that an injunction will be granted and that the plaintiff will be able to obtain a final decision declaring the advertising illegal.
Numerous cases follow international precedent in referring to the requirements of the European Union Directive on comparative advertising. By following these criteria, Argentine courts have developed standards very similar to European regulation. It is as if the judges wanted to validate the law created by the Courts with an external source. Similar conclusions reached elsewhere indicate the existence of universally accepted principles that accept that comparing products in commercial advertisements should be lawful.Palazzi, Pablo. "Comparative Advertising in Argentine Law" Fordham Intellectual Property, Media & Entertainment Law Journal, Vol. 22, No. 659, 2012. https://ssrn.com/abstract=2122583
Australia In Australia, no specific law governs comparative advertising although certain cases regarding this matter have occurred.Murphy, Matthew Anthony. "Legal aspects of comparative advertising and a strategy for its use." Queensland University of Technology Law Journal 12 (1996): 41-59. LegalTrac. Web. 2 September 2011. Comparative advertising that is truthful, and does not lead to confusion is permitted.Lieberman, Guidebook to Australian Trade Marks Law and Practice (2nd ed) (Sydney CCH, Australia, 1985) p.75
Generally, Australian advertisers should make sure that the following are complied when exercising comparative advertising to avoid breaches regarding misleading advertising under Australia Consumer Law:Advertising and selling, Commonwealth of Australia, 2011.
Product compared should be like products as per HCF Australia Ltd v Switzerland Australia Health Fund Pty Ltd, ATPR 40-846 or else comparison must be made clearly to consumers as per Gillette Australia Pty Ltd v Energizer Australia Pty Ltd; FCAFC 223 Test results are presented as it is as per Makita v Black & Decker; ATPR 41-030 Test used are appropriate and conducted according to industry guidelines as per Duracell Australia Pty Ltd v Union Carbide Australia Ltd; ATPR 40-918 and Mock up test results truly reflects how is product functioning in real life as per Hoover (Australia) Pty Ltd v Email Ltd. ATPR 41-149B. Clarke, B. Sweeney & Mark Bender, Marketing and The Law, 4th edn, LexisNexis Butterworths, New South Wales, 2011.
Brazil In Brazil, the Brazilian Advertising Self-Regulation Code allow comparative advertising with certain restrictions. Its primary purpose shall be the clarification or consumer's protection; it shall have as basic principle the objectiveness of the comparison since subjective data, psychological or emotionally based data does not constitute a valid comparison basis for consumers; the purposed or implemented comparison shall be capable of being supported by evidence; in the case of consumption goods, the comparison shall be made with models manufactured in the same year and no comparison shall be made between products manufactured in different years, unless it is only a reference to show evolution, in which case the evolution shall be clearly demonstrated; there shall be no confusion between the products and competitor's brands; there shall be no unfair competition, denigration of the product's image or another company's product; and there shall be no unreasonable use of the corporate image or goodwill of third parties.
Likewise, the majority of the Brazilian authors is inclined to say that its legitimacy depends to meet certain requirements, which, in general, would be stipulated by Article 3a of Directive 84/450/EECDURIGAN, P. L. Publicidade comparativa: informação persuasiva e concorrência. pg. 248 http://www.paulo.durigan.com.br/artigos/publicidadecomparativa.pdf
In an early Mercosur's rules through Resolution 126/96.
European Union Prior to 1997, many European countries severely limited comparative claims as an advertising practice. For example, in Germany comparisons in advertising had since the 1930sBundesgerichtshof, Hellegold, GRUR 1931, 1299 ff., 1300; the German Supreme Court based its decision on the two grounds, namely that no one should be required to tolerate being another's promotional tool, and that comparative advertising effectively permitted the advertiser "judge their own case". been largely prohibited as an anti-competitive practice, with very limited exceptions for cases where the advertiser had a good reason for presenting a critical claim, and reference to a competitor was necessary in order to present that claim.Bundesgerichtshof, Tauchkühler, GRUR 1970, 422 Importantly, this only applied to critical claims - claims of equivalence were completely prohibited. A similar approach had been adopted in France, where comparative advertising was commonly seen as disparaging of competitors.Jean-Jacques Biolay, Publicité comparative, 902 Juris-classeur Concurrence Consommation 6 (2003). However, the legalisation of comparative advertising in France in 1992,The Cour de Cassation (French Supreme Court) had permitted comparative advertising since 1986, Cass. com., 22 July 1986. The principles set out by the Court were codified by Law 92-60 of 1992. opened the door to a general legalisation of comparative advertising through EU law, which had first been proposed by the European Commission in 1978.Official Journal of the European Union, No C 70, 21. 3. 1978, p. 4. The result was the adoption of Directive 97/55/EC, which came into force in the year 2000. The relevant provisions are now contained in Directive 2006/114/EC.
This Directive sets out rules that comparative advertising must comply with in order to be considered permissible.See Article 4 of Directive 2006/114/EC These include the requirements that the comparison concern goods and services that meet the same purpose, that it objectively compare the relevant characteristics of the products concerned and that it not cause confusion or denigrate the trademarks and other distinguishing signs of competitors. The Directive prohibits comparisons that take unfair advantage of the reputation of a competitor's distinguishing marks, or present goods or services as imitations of products covered by a protected trade mark or trade name. Additionally, any comparison aimed at promoting goods bearing a protected designation of origin must refer exclusively to other goods bearing the same designation.The Court of Justice of the European Union (CJEU) has held that this does not preclude advertising promoting other types of goods from referring to goods with a designation of origin, as long as this does not result in a taking of unfair advantage; De Landtsheer Emmanuel SA v. Comité Interprofessionnel du Vin de Champagne, Case C-381/05. Directive 2006/114/EC constitutes a total harmonisation of the rules on comparative advertising, meaning that the Member States are neither allowed to permit comparisons that breach the requirements of the Directive, nor prohibit ones that do.Article 8(1) Directive 2006/114/EC