Comparative advertising
Produced in partnership with Paul Jordan, Lucie Fortune and Catriona MacLeod of Bristows LLP
Comparative advertising

The following IP guidance note Produced in partnership with Paul Jordan, Lucie Fortune and Catriona MacLeod of Bristows LLP provides comprehensive and up to date legal information covering:

  • Comparative advertising
  • Content
  • What is comparative advertising?
  • Legal framework
  • What conditions must be satisfied for a comparative advertisement to be lawful?
  • How does comparative advertising relate to trade mark law?
  • Enforcement in the UK
  • Brexit
  • Comparative advertising with competitors—checklist

As of exit day (31 January 2020) the UK is no longer an EU Member State. However, in accordance with the Withdrawal Agreement, the UK has entered an implementation period, during which it continues to be subject to EU law. This has an impact on this Practice Note. For further guidance, see Practice Note: Brexit—IP rights.

Many businesses wish to promote their goods or services by reference to those of a competitor to gain a commercial advantage. For example, a business may seek to advertise its products as being of a higher quality or a better price than a competitor’s. The law governing this area strives to provide a balance between the different interests that may be affected by allowing comparative advertising. In short:

  1. advertisements are allowed to highlight the comparable characteristics of products to consumers, but

  2. advertisements must not distort competition, be detrimental to trade mark proprietors or have an adverse effect on consumer choice

Content

This Practice Note examines the following areas:

  1. What is comparative advertising?

  2. Legal framework

  3. What conditions must be satisfied for a comparative advertisement to be lawful?

  4. How does comparative advertising relate to trade mark law?

  5. Enforcement in the UK

  6. Brexit

  7. Comparative advertising with competitors—checklist

What is comparative advertising?

'Comparative advertising' is defined as any advertising which explicitly or by implication identifies a competitor