Comparative Advertising Essay Example | Topics and Well Written Essays - 1500 words

Comparative Advertising - Essay Example All comparative advertising is designed to highlight the advantages of the goods or services offered by the advertiser as opposed to those of a competitor. In order to achieve this objective, the message of the advertisement must necessarily underlie the differences between the goods and services compared by describing their main characteristics. The comparison made by the advertiser will necessarily flow from such a description. The rules on competitive advertising are defined by statutory law, in specific rules, in addition to the general rules on unfair competition. Main rules belong to advertising law, but they are in strong competition with the competition law rules. Interests of competitors as well as those of consumers are protected by both Acts. Before October 1994 there were various laws in the UK restricting comparative advertising, thought not prohibiting it per se. For example, the use of a trade mark registered in Part A of the trade Marks Register by a third party in it s advertising constituted trade mark infringement under section 4 (1) (b) of the Trade Marks Act 1938, regardless of the content of the advertising. The 1990 White Paper, Reform of Trade Mark Law, noted that public opinion towards comparative advertising had changed, but that it was unacceptable to allow an advertiser to ride on the back of a competitors trade mark. mark. 2Section 4 (1) (b) of the 1938 Act was replaced by the new Act by section 10 (6), which aims to strike a balance between the interests of consumers in being informed by one manufacturer about the products of another and the interests of proprietors of trade marks in protecting their brands from competitors emphasizing features of the trade marked product of service which are not to their advantage. The section states: Nothing in the preceding provisions of this section shall be construed as preventing the use of registered trade marks by any person for the purpose of identifying goods and services as those of the proprietor or licensee. But any such use otherwise than in accordance with honest practices in industrial or commercial matters shall be treated as infringing the registered trade mark if the use without due cause takes unfair advantage of, or is detrimental to, the distinctive character or repute of the trade mark. The UK courts are guided by the stipulations in section 10 (6) and are prone to give particular judicial credence and review to specific aspects as it relates to conformity: (a) honest practices in industrial and commercial matters (b) without due cause to take unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade market. The courts have analyzed section 10 (6) and concluded that an infringement must satisfy both a & b as stated. Which is to say, it must be in contrary to a reasonable standard of what constitutes honest practices in industrial and commercial matters and without due cause. Take unfair advantage of, or be detrimental to, the distinctive character or repute of the mark. The court was requested to rule on an infringement complaint in Barclays Bank3 Ptc v. RBS Advanta (1997). In an action seeking interim