When is it okay to use comparative advertising?

A comparative advertisement is permitted under the Comparative Advertising Directive as long as it fulfils the certain rules:

It is not "misleading".  This means:misleading advertising is any advertising which in any way, including its presentation, deceives or is likely to deceive the persons to whom it is addressed or whom it reaches and which, by reason of its deceptive nature, is likely to affect their economic behaviour or which, for those reasons, injures or is likely to injure a competitor.

factors to be taken into account when assessing whether advertising is misleading include the characteristics of the advertised goods and services, how they are delivered, how prices are calculated and the nature and attributes of the advertiser.

It compares goods and services meeting the same needs or intended for the same purpose.

It objectively compares one or more material, relevant, verifiable and representative features of those goods and services, which may include price.

It does not discredit or denigrate the trade marks, trade names, other distinguishing marks, goods, services, activities or circumstances of a competitor.

For products with designation of origin, it relates in each case to products with the same designation.

It does not take unfair advantage of the reputation of a trade mark, trade name or other distinguishing marks of a competitor or of the designation of origin of competing products.

It does not present goods or services as imitations or replicas of goods or services bearing a protected trade mark or trade name.

It does not create confusion among traders, between the advertiser and a competitor or between the advertiser's trade marks, trade names, other distinguishing marks, goods or services and those of the competitor.

By Jane Coyle

Jane can be contacted at jane@trademarkroom.com