Comparative advertising
Produced in partnership with Paul Jordan of Bristows and Timothy Heaps of Bristows

The following IP practice note produced in partnership with Paul Jordan of Bristows and Timothy Heaps of Bristows 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?
  • Trade Marks Directive
  • Enforcement in the UK
  • Complaints to authorities
  • Direct action
  • More...

Comparative advertising

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. Comparative advertising with competitors—checklist

What is comparative advertising?

'Comparative advertising' is defined as any advertising which explicitly or by implication identifies a competitor or goods or services offered by a competitor.

The definition was originally derived from Article 2(c) of Directive 2006/114/EC, the Misleading and Comparative Advertising Directive (the EU Misleading and Comparative Advertising Directive). While the EU Misleading and Comparative Advertising Directive is not part of retained EU law, its effect is nonetheless preserved in the UK by way of the Business Protection from Misleading Marketing Regulations

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