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The introduction of the European Comparative Advertising Directive 2006 and its implementation into UK law has allowed for companies to advertise their goods alongside those belonging to a third party as long as certain conditions are met. The potential for a successful claim against a company using comparative advertising has been reduced, but it remains a complex area for which a substantial amount of case law has accumulated and which revolves around three particular issues: intellectual property, pricing and the product itself.
What does it mean?
A comparative advertisement is one which explicitly or by implication identifies a competitor or goods or services offered by a competitor.
When is it lawful?
The following conditions must be fulfilled:
Enforcement in the UK
Healthy competition is encouraged within the UK and the EU and this has often resulted in the activities of comparative advertisers being accommodated. Possible fines, injunctions and/or awards of compensation could be made if a government body such as the Competition and Markets Authority or Trading Standards becomes involved. However, claims by a third party can extend to trademark infringement, passing off or possibly copyright infringement.
How can you avoid a claim?
The following points provide an outline of the main issues to consider prior to undertaking any comparative advertising campaign and may make the difference between a lawful or unlawful campaign:
Finally, it is worth remembering that where a company undertakes comparative advertising in any form it is usually viewed as a provocative gesture by the named competitor and therefore can never be guaranteed to avoid litigation, no matter how lawful the campaign. Indeed it might invite litigation and you should, therefore, prepare for that eventuality as part of your consideration for the proposed campaign.
If you are thinking about running a campaign of this type and require legal advice why not speak to one of our team today!