Introduction
Comparative advertising takes place when one trader’s business is compared to another trader’s business with reference to their trade mark or trade name. The advertisement usually presents comparisons of price and particular qualities of goods, intended to inform consumers that the second trader’s goods or services are somehow superior. The comparisons are most frequently made to the products or services of a leader in the market.
There are various ways in which a trader can undertake comparative advertising, including:
referring to a competitor by name;
referring to a competitor’s trade mark;
not referring specifically to the competitor by name, but referring to ‘the leading brand’ where consumers will know what that leading brand is; or
stating which products are compatible with those of a competitor and issuing a table listing the serial numbers of each party.
For years there have been a number of questions raised in relation to the legality of comparative advertising and whether it should be permitted. Fair and honest Advertisements did not cause any harm were therefore lawful. This position stemmed from the introduction of Comparative Advertising Directive (EEC) (Council Directive 97/55 amending The Misleading and Comparative Advertising Directive (Council Directive 84/450) (the ‘Directive’) provides guidance as to the boundaries of comparative advertising and provide strict criteria that an advert must meet in order to be lawful.
