Comparative Advertising

What is comparative advertising?

Comparative advertising is a term for advertisements which identify and compare competing services and goods based upon certain qualities such as its price, performance or other specific features.

When is comparative advertising lawful?

For comparative advertising to be lawful you must ensure it is not misleading in a way that it may deceive its audience or harm a competitor. The advert in question must compare only similar goods and services which will be used for similar purposes; it should not intend to take an unfair disadvantage of a competitor’s reputation, trade mark or trade name, and must not present goods or services as a replica holding a protected trade mark or name.

What happens if comparative advertising is unlawful?

If your comparative advertising is done unlawfully, you may be exposed to liability for Trade Mark Infringement. You must be careful when using comparative advertising as, if you get it wrong, you may found guilty of using false advertisements and supplying misleading information this could prove expensive and lead to a loss of confidence in your products and services.

Superdrug recently fell foul of using comparative advertisements unlawfully; they released an advertisement campaign in which they stated that they sold 960 everyday health and beauty products cheaper than Boots. Boots complained to the Advertising Standards Agency (ASA) who found that the advertisements were misleading on three grounds: first, Superdrug’s prices were not always cheaper than Boots; second, not all the products were ‘everyday’ products and third, not all the products were ‘health and beauty’ products. The ASA also found that Superdrug had used out of date information to make the comparison. The ASA deemed that this could be misleading to customers and may injure Boots.

If you feel that an advertiser has produced an unlawful comparative advertisement you can either proceed directly against the advertiser by bringing trademark infringement proceedings or making a complaint to the ASA.

What can you do to avoid being accused of unlawful comparative advertising?

If you are thinking of using comparative advertising, you may want to give consideration to the points below which will help ensure that you are not accused of unlawful comparative advertising:

• Avoid reproduction of competitor’s logos. This may give grounds for them to bring a Copyright Infringement Claim.
• Don’t take an unfair advantage of competitor’s reputation, trade mark or name.
• Avoid boasting excessively! This may lead to an inaccurate portrayal of your own service or product!
• Show the whole picture. Make sure only relevant prices, benefits, performance features, etc are compared.
• Make sure the claims are truthful. Be ready to support your claims by certifiable facts.
• Ensure your advert complies with any applicable laws. Using the Industry Codes of Practice may be useful.