Comparative advertising

Last updated

Comparative advertising, or combative advertising, is an advertisement in which a particular product, or service, specifically mentions a competitor by name for the express purpose of showing why the competitor is inferior to the product naming it. [1] [2] Also referred to as "knocking copy", it is loosely defined as advertising where "the advertised brand is explicitly compared with one or more competing brands and the comparison is obvious to the audience". [3] An advertising war is said to be occurring when competing products or services exchange comparative or combative advertisements mentioning each other. [4]

Contents

This should not be confused with parody advertisements, where a fictional product is being advertised for the purpose of poking fun at the particular advertisement, nor should it be confused with the use of a coined brand name for the purpose of comparing the product without actually naming an actual competitor. ("Wikipedia tastes better and is less filling than the Encyclopedia Galactica.")

In the United States, the Federal Trade Commission (FTC) defined comparative advertising as "advertisement that compares alternative brands on objectively measurable attributes or price, and identifies the alternative brand by name, illustration or other distinctive information". [5] This definition was used in the case Gillette Australia Pty Ltd v Energizer Australia Pty Ltd. [6] Similarly, the Law Council of Australia recently suggested that comparative advertising refers to "advertising which include reference to a competitor’s trademark in a way which does not impute proprietorship in the mark to the advertiser". [7]

Comparative advertisements could be either indirectly or directly comparative, positive or negative, and seeks "to associate or differentiate the two competing brands". [8] Different countries apply differing views regarding the laws on comparative advertising.

History

The earliest court case concerning comparative advertising dates back to 1910 in the United States – Saxlehner v Wagner. [9] [10] Prior to the 1970s, comparative advertising was deemed unfeasible due to related risks. For instance, comparative advertising could invite misidentification of products, potential legal issues, and might even win public sympathy for their competitors as victims.

In 1972, the FTC began to encourage advertisers to make comparison with named competitors, with the broad, public welfare objective of creating more informative advertising. [11] The FTC argued that this form of advertising could also stimulate comparison shopping, encourage product improvement and innovation, and foster a positive competitive environment. [12] However, studies have shown that while comparative advertisements had increased since 1960, the relative amount of comparative advertising is still small. [13]

Argentina

In Argentina, there is no specific statute dealing with comparative advertising (so it is not forbidden), but there are clear jurisprudential rules based on unfair competition law. If in some manner an advertisement is proven to be unfair or exceeds ethical standards by hiding the truth or omitting some essential aspect of the comparison, it is probable that an injunction will be granted and that the plaintiff will be able to obtain a final decision declaring the advertising illegal.

Numerous cases follow international precedent in referring to the requirements of the European Union Directive on comparative advertising. By following these criteria, Argentine courts have developed standards very similar to European regulation. It is as if the judges wanted to validate the law created by the Courts with an external source. Similar conclusions reached elsewhere indicate the existence of universally accepted principles that accept that comparing products in commercial advertisements should be lawful. [14]

Australia

In Australia, no specific law governs comparative advertising although certain cases regarding this matter have occurred. [15] Comparative advertising that is truthful, and does not lead to confusion is permitted. [16]

Generally, Australian advertisers should make sure that the following are complied when exercising comparative advertising to avoid breaches regarding misleading advertising under Australia Consumer Law: [17]

  1. Product compared should be like products as per HCF Australia Ltd v Switzerland Australia Health Fund Pty Ltd, [18] or else comparison must be made clearly to consumers as per Gillette Australia Pty Ltd v Energizer Australia Pty Ltd; [19]
  2. Test results are presented as it is as per Makita v Black & Decker; [20]
  3. Test used are appropriate and conducted according to industry guidelines as per Duracell Australia Pty Ltd v Union Carbide Australia Ltd; [21] and
  4. Mock up test results truly reflects how is product functioning in real life as per Hoover (Australia) Pty Ltd v Email Ltd. [22] [23]

Brazil

In Brazil, the Brazilian Advertising Self-Regulation Code [24] allow comparative advertising with certain restrictions. Its primary purpose shall be the clarification or consumer's protection; it shall have as basic principle the objectiveness of the comparison since subjective data, psychological or emotionally based data does not constitute a valid comparison basis for consumers; the purposed or implemented comparison shall be capable of being supported by evidence; in the case of consumption goods, the comparison shall be made with models manufactured in the same year and no comparison shall be made between products manufactured in different years, unless it is only a reference to show evolution, in which case the evolution shall be clearly demonstrated; there shall be no confusion between the products and competitor's brands; there shall be no unfair competition, denigration of the product's image or another company's product; and there shall be no unreasonable use of the corporate image or goodwill of third parties.

Likewise, the majority of the Brazilian authors is inclined to say that its legitimacy depends to meet certain requirements, which, in general, would be stipulated by Article 3a of Directive 84/450/EEC [25]

In an early Mercosur's rules through Resolution 126/96.

European Union

Prior to 1997, many European countries severely limited comparative claims as an advertising practice. For example, in Germany comparisons in advertising had since the 1930s [26] been largely prohibited as an anti-competitive practice, with very limited exceptions for cases where the advertiser had a good reason for presenting a critical claim, and reference to a competitor was necessary in order to present that claim. [27] Importantly, this only applied to critical claims - claims of equivalence were completely prohibited. A similar approach had been adopted in France, where comparative advertising was commonly seen as disparaging of competitors. [28] However, the legalisation of comparative advertising in France in 1992, [29] opened the door to a general legalisation of comparative advertising through EU law, which had first been proposed by the European Commission in 1978. [30] The result was the adoption of Directive 97/55/EC, which came into force in the year 2000. The relevant provisions are now contained in Directive 2006/114/EC.

This Directive sets out rules that comparative advertising must comply with in order to be considered permissible. [31] These include the requirements that the comparison concern goods and services that meet the same purpose, that it objectively compare the relevant characteristics of the products concerned and that it not cause confusion or denigrate the trademarks and other distinguishing signs of competitors. The Directive prohibits comparisons that take unfair advantage of the reputation of a competitor's distinguishing marks, or present goods or services as imitations of products covered by a protected trade mark or trade name. Additionally, any comparison aimed at promoting goods bearing a protected designation of origin must refer exclusively to other goods bearing the same designation. [32] Directive 2006/114/EC constitutes a total harmonisation of the rules on comparative advertising, meaning that the Member States are neither allowed to permit comparisons that breach the requirements of the Directive, nor prohibit ones that do. [33]

Further, while trademark rights can in principle be used to prevent comparative advertising that makes unauthorised use of a competitor's trademark, [34] this is not the case where the comparative advertisement complies with all the requirements of Directive 2006/114/EC. [35] Legitimate comparative advertising must therefore be seen as an exception to the exclusive rights of the trademark proprietor. However, the trademark proprietor can, thanks to the prohibition on taking unfair advantage of a trademark's reputation, oppose the use of their trademark where it is not aimed at distinguishing the products of the advertiser and trademark proprietor and to highlight their differences objectively, [36] but rather at riding on the coat-tails of that mark in order to benefit from its reputation. [37]

The requirements set out by the Directive have resulted in some controversy. This is particularly true of the per se prohibition on comparisons presenting goods and services as imitations of trademarked products. In this regard, EU law contrasts starkly with the US approach; the US courts have long held [38] that traders are allowed to the trademarked names of products they have imitated in advertising. In contrast, in L'Oréal and others v. Bellure, [39] the Court of Justice held that smell-alike perfumes marketed through comparison lists breached this condition. This decision was criticised both by the English courts [40] and by scholars, [41] who have considered that this places unjustified limits on advertising acts that are otherwise fully legal, such as copying that does not infringe intellectual property rights.

Hong Kong

The law in Hong Kong regarding comparative advertising is the law that existed in the UK prior to the enactment of the UK Act 1994. [42] Hong Kong has no legislation exclusively intended at limiting false or misleading advertisements. Still, the Trade Descriptions Ordinance (Cap 362) bans the use of false trade descriptions in advertisements. The tort of trade libel also exists to deal with false or misleading advertisements designed to injure the competitor. [43] Consumer Council may have the authority to publish information with a perspective to amending false or misleading advertisements, [44] while the Association of Accredited Advertising Agencies of Hong Kong have the authority to take action against members who organize advertisements that are inaccurate. [45]

Philippines

The industry self-regulatory body Ad Standards Council permits comparative advertising on certain industries such as automobile but not automotive products, mobile phones (excluding services), laptops, consumer durables, airline and shipping lines, musical instruments and entertainment. The ASC notes that advertisers of fast-moving consumer goods have a consensus not to devise comparative advertising. [46]

United Kingdom

In the UK, most of the use of competitor's registered trademark in a comparative advertisement was an infringement of the registration up till the end of 1994. However, the laws on comparative advertising were harmonized in 2000. The current rules on comparative advertising are regulated by a series of EU Directives. Regulation 4 of The Business Protection from Misleading Marketing Regulations 2008 implements the provisions of Directive (EC) 2006/114 in the UK, [47] setting out the conditions under which the comparative element of comparative advertising is permitted, including a requirement for objectivity. [48]

One of the classic cases of comparative advertising in the UK was the O2 v Hutchison case. The European Court of Justice (ECJ) held that there could have been a trademark infringement when a comparative advertiser used the registered trademark for the advertiser's own goods and services. [49] It was also held that a trademark proprietor could not prevent a competitor's use of a sign similar or identical to his mark in a comparative advertisement, which satisfies all the conditions of the Comparative Advertising Directive. If the Advocate General's decision in the O2 case were followed by the ECJ, competitors will not be able to use trademark legislation either to prevent a comparative advertisement through an injunction or to charge in respect of its use. Conversely, in British Airways plc v Ryanair Ltd. [50] a lenient approach was adopted by the UK courts. The use of competitors' trademarks was no longer restricted for businesses competing within an industry, provided that compliance of the conditions set out in the legislation were performed. This meant that businesses are able to use the trademarks of other companies and trade names to distinguish the relative merits of their own products and services over those of their competitors. [51]

United States

The FTC and BBB National Programs' National Advertising Division (NAD) govern the laws of comparative advertising in the United States including the treatment of comparative advertising claims. FTC stated that comparative advertising could benefit consumers and encourages comparative advertising, provided that the comparisons are "clearly identified, truthful, and non-deceptive". [52] Although comparative advertising is encouraged, NAD has stated "claims that expressly or implicitly disparage a competing product should be held to the highest level of scrutiny in order to ensure that they are truthful, accurate, and narrowly drawn". [53] Another major law is the trademark protective Lanham Act, which states that one could incur liability when the message of the comparative advertisement is untrue or uncertain, but has the intention to deceive consumers through the implied message conveyed.

Effectiveness

Comparative advertising has been increasingly implemented through the years, and the types of comparative advertising range from comparing a single attribute dimension, comparing an attribute unique to the target and absent in the referent and comparisons involving attributes unique to both brands. [54] The contributing factors to the effectiveness of comparative advertising include believability, [55] which refers to the extent a consumer can rely on the information provided in comparative advertisements, the level of involvement, [56] and the convenience in evaluation, [57] provided by spoon-feeding the consumer with information that does not require extra effort in recall. [58]

Comparative advertising is generally coupled with negativity, as evidenced by early industry condemnation. [59] Stating reasons such as participation in comparative advertising damaged the honour and credibility of advertising. Studies have suggested that negative information can be stored more effectively, [60] thus generating the impact that any advertisement is purposed for, and more importantly, strong recall. [61] On the contrary, such negativity can either be transferred directly to the brand and the consumer's impression of the brand, various studies through the years have proven that comparative advertising has been responded to negatively. [62]

Examples

Comparative advertising has been used effectively by companies like The National Australia Bank (NAB). Its "break up" campaign made a large impact, winning an award from Cannes, and a substantial increase in its consumer interest. [63]

Apple Inc. has effectively used its Mac vs PC advertisements, by way of the "Get a Mac" campaign, as part of its marketing efforts to increase its market share over the years.[ citation needed ]

Such companies prove the academic view that comparative advertising is more successful when used by established brands, [64] justified by the credibility and attention an established brand brings. Other famous examples include L’Oreal SA v Bellure NV [65] and Coca-Cola v Pepsi. [66] Comparative advertising has to be executed with caution and deep consideration for the targeted markets as the novelty of the concept affects the effectiveness of the stipulated campaigns. [67]

In the 1980s, during what has been referred to as the cola wars, soft-drink manufacturer Pepsi ran a series of advertisements where people, caught on hidden camera, in a blind taste test, chose Pepsi over rival Coca-Cola. Recently, Verizon and AT&T filed lawsuits against each other due to comparative ads which tried to represent superiority over each other. [68] Similarly, McDonald's and Burger King have done similar evidence between the two burger chains, in which Burger King "flame-broils" burgers compared to McDonald's which "fries" their burgers, an evidence known as the burger wars. Wendy's tried to further follow suit with their famous "Where's the beef?" campaign in 1984, in which three elderly ladies poke fun of a huge bun sandwiched with a small burger patty, in which one (played by Clara Peller) asks the famous question. The campaign faced reality that its Wendy's Single had more beef than the Burger King Whopper or McDonald's Big Mac.

"Daisy" advertisement

The use of comparative advertising has been well established in political campaigns, where typically one candidate will run ads where the record of the other candidate is displayed, for the purpose of disparaging the other candidate. The most famous of these type ads, which only ran once on TV, consisted of a child picking daisies in a field, while a voice which sounded like Barry Goldwater performed a countdown to zero before the launch of a nuclear weapon which explodes in a mushroom cloud. The ad, "Daisy", was produced by Lyndon B. Johnson's campaign in an attempt to prevent Goldwater from either winning the nomination of his party or being selected.

Another example took place throughout the late 1980s between the bitter rivals Nintendo and Sega. "Genesis does what Nintendon't" immediately became a catchphrase following the release of the Sega Genesis (known as Mega Drive in PAL countries).

A 30-second commercial promoting sustainability, [69] showing soda bottles exploding each time a person makes a drink using his Sodastream machine, was banned in the United Kingdom in 2012. [70] [71] Clearcast, the organization that preapproves TV advertising in the U.K., explained that they "thought it was a denigration of the bottled drinks market." [72] The same ad, crafted by Alex Bogusky, ran in the United States, Sweden, Australia, and other countries. An appeal by Sodastream to reverse Clearcast's decision to censor the commercial was rejected. [73] [74] [75] A similar ad was expected to air during Super Bowl XLVII in February 2013 but was banned by CBS for jabbing at Coke and Pepsi (two of CBS's largest sponsors). [76] [77] [78]

In 2012, Microsoft's Bing (formerly MSN Search) began to run a campaign about which search engine they prefer as it compared Bing to Google, and that more people preferred Bing over Google. The campaign was titled "Bing It On".

Related Research Articles

<span class="mw-page-title-main">Advertising</span> Form of communication for marketing

Advertising is the practice and techniques employed to bring attention to a product or service. Advertising aims to put a product or service in the spotlight in hopes of drawing it attention from consumers. It is typically used to promote a specific good or service, but there are wide range of uses, the most common being the commercial advertisement.

<span class="mw-page-title-main">Sex in advertising</span> Use of sex appeal in advertising

Sex appeal in advertising is a common tactic employed to promote products and services. Research indicates that sexually appealing content, including imagery, is often used to shape or alter the consumer's perception of a brand, even if it is not directly related to the product or service being advertised. This approach, known as "sex sells," has become more prevalent among companies, leading to controversies surrounding the use of sexual campaigns in advertising.

In marketing, brand management begins with an analysis on how a brand is currently perceived in the market, proceeds to planning how the brand should be perceived if it is to achieve its objectives and continues with ensuring that the brand is perceived as planned and secures its objectives. Developing a good relationship with target markets is essential for brand management. Tangible elements of brand management include the product itself; its look, price, and packaging, etc. The intangible elements are the experiences that the target markets share with the brand, and also the relationships they have with the brand. A brand manager would oversee all aspects of the consumer's brand association as well as relationships with members of the supply chain.

<span class="mw-page-title-main">Google Ads</span> Online advertising platform owned by Google

Google Ads is an online advertising platform developed by Google, where advertisers bid to display brief advertisements, service offerings, product listings, and videos to web users. It can place ads in the results of search engines like Google Search, mobile apps, videos, and on non-search websites. Services are offered under a pay-per-click (PPC) pricing model.

<span class="mw-page-title-main">False advertising</span> Misleading content in advertisements

False advertising is the act of publishing, transmitting, or otherwise publicly circulating an advertisement containing a false claim, or statement, made intentionally to promote the sale of property, goods, or services. A false advertisement can be classified as deceptive if the advertiser deliberately misleads the consumer, rather than making an unintentional mistake. A number of governments use regulations to limit false advertising.

<span class="mw-page-title-main">Advertising management</span> Part of the advertising industry

Advertising management is how a company carefully plans and controls its advertising to reach its ideal customers and convince them to buy.

Search engine marketing (SEM) is a form of Internet marketing that involves the promotion of websites by increasing their visibility in search engine results pages (SERPs) primarily through paid advertising. SEM may incorporate search engine optimization (SEO), which adjusts or rewrites website content and site architecture to achieve a higher ranking in search engine results pages to enhance pay per click (PPC) listings and increase the Call to action (CTA) on the website.

Music in advertising refers to music integrated into mass electronic media advertisements to enhance its success. Music in advertising affects the way viewers perceive the brand by different means and on different levels, and "can significantly affect the emotional response to television commercials." It also affects the musicians whose music is featured in advertisements.

<span class="mw-page-title-main">Canadian trademark law</span>

Canadian trademark law provides protection to marks by statute under the Trademarks Act and also at common law. Trademark law provides protection for distinctive marks, certification marks, distinguishing guises, and proposed marks against those who appropriate the goodwill of the mark or create confusion between different vendors' goods or services. A mark can be protected either as a registered trademark under the Act or can alternately be protected by a common law action in passing off.

Advertising research is a systematic process of marketing research conducted to improve the efficiency of advertising. Advertising research is a detailed study conducted to know how customers respond to a particular ad or advertising campaign.

In Internet marketing, search advertising is a method of placing online advertisements on web pages that show results from search engine queries. Through the same search-engine advertising services, ads can also be placed on Web pages with other published content.

The following outline is provided as an overview of and topical guide to marketing:

Brand awareness is the extent to which customers are able to recall or recognize a brand under different conditions. Brand awareness is one of two dimensions from brand knowledge, an associative network memory model. It is a key consideration in consumer behavior, advertising management, and brand management. The consumer's ability to recognize or recall a brand is central to purchasing decision-making because purchasing cannot proceed unless a consumer is first aware of a product category and a brand within that category. Awareness does not necessarily mean that the consumer must be able to recall a specific brand name, but they must be able to recall enough distinguishing features for purchasing to proceed. Creating brand awareness is the main step in advertising a new product or bringing back the older brand in light.

<span class="mw-page-title-main">Targeted advertising</span> Form of advertising

Targeted advertising is a form of advertising, including online advertising, that is directed towards an audience with certain traits, based on the product or person the advertiser is promoting.

<span class="mw-page-title-main">Trademark</span> Trade identifier of products or services

A trademark is a type of intellectual property consisting of a recognizable sign, design, or expression that identifies a product or service from a particular source and distinguishes it from others. A trademark owner can be an individual, business organization, or any legal entity. A trademark may be located on a package, a label, a voucher, or on the product itself. Trademarks used to identify services are sometimes called service marks.

<span class="mw-page-title-main">Brand</span> Identification for a good or service

A brand is a name, term, design, symbol or any other feature that distinguishes one seller's good or service from those of other sellers. Brands are used in business, marketing, and advertising for recognition and, importantly, to create and store value as brand equity for the object identified, to the benefit of the brand's customers, its owners and shareholders. Brand names are sometimes distinguished from generic or store brands.

<i>Network Automation, Inc. v. Advanced Systems Concepts, Inc.</i> Court case decided on March 8, 2011

Network Automation, Inc. v. Advanced Systems Concepts, Inc., 638 F.3d 1137 was a court case decided on March 8, 2011, where the United States Court of Appeals for the Ninth Circuit ruled that the use of a competitor's trademark as an Internet search advertising keyword did not constitute trademark infringement. In the case, Network Automation advertised their own competing product in search queries that contained Advanced Systems Concepts' "ActiveBatch" trademark. In determining whether trademark infringement occurred, the court evaluated factors relevant to the likelihood of customer confusion outlined in AMF Inc. v. Sleekcraft Boats and concluded that confusion was unlikely.

<span class="mw-page-title-main">History of advertising</span> Major force in capitalist economies

The history of advertising can be traced to ancient civilizations. It became a major force in capitalist economies in the mid-19th century, based primarily on newspapers and magazines. In the 20th century, advertising grew rapidly with new technologies such as direct mail, radio, television, the internet and mobile devices.

<span class="mw-page-title-main">History of advertising in Britain</span>

The history of advertising in Britain has been a major part of the history of its capitalist economy for three centuries. It became a major force as agencies were organized in the mid-19th century, using primarily newspapers and magazines. In the 20th century, It grew rapidly with new technologies, such as direct mail, radio, television. In the late 19th century, home-based British agencies were swallowed up and became branches of international firms, but London remains one of the world's most important advertising centers. Radical changes have come recently because of the new roles for the Internet and smart phones. For current conditions see Advertising.

Google France SARL and Google Inc. v Louis Vuitton Malletier SA (C-236/08), also known as Google v. Louis Vuitton was a landmark decision in which the European Court of Justice (ECJ) held that search engines operators such as Google do not themselves infringe trademark rights if they allow advertisers to use a competitor's trademark as a keyword.

References

  1. ↑ Chen, Yuxin; Joshi, Yogesh V.; Raju, Jagmohan S.; Zhang, Z. John (2009). "A Theory of Combative Advertising". Marketing Science. 28 (1): 1–19. CiteSeerX   10.1.1.151.4557 . doi:10.1287/mksc.1080.0385.
  2. ↑ Beard, F. (2010). "Comparative Advertising Wars: An Historical Analysis of Their Causes and Consequences". Journal of Macromarketing. 30 (3): 270–286. doi:10.1177/0276146710372222. hdl: 11244/25089 .
  3. ↑ T.E. Barry & R.L. Tremblay, "Comparative advertising: perspectives and issues", Journal of Advertising, Vol. 4, No. 4, 1975, pp. 15-20.
  4. ↑ "Most Interesting Brand Advertisement Wars Of All Time | Feedough". 13 February 2017. Retrieved 19 March 2021.
  5. ↑ Federal Trade Commission Commercial Practice Rule 16 CFR §14.15 n 1 (2002)
  6. ↑ (2002) 193 ALR 629
  7. ↑ P. Armitage in M.A. Murphy, "Legal aspects of comparative advertising and a strategy for its use", Queensland University of Technology law journal, Vol. 12, 1996, pp. 41-59.
  8. ↑ B. Mills, "Comparative advertising: should it be allowed?”, European Intellectual Property Review, Vol. 17, No. 9, 1995, pp. 417-430.
  9. ↑ 16 US 375, 30 S.Ct. 298, 54 L.ED 525 (1910)
  10. ↑ B. Mills, "Comparative advertising: should it be allowed?”, European Intellectual Property Review, Vol. 17, No. 9, 1995, pp. 417-430.
  11. ↑ F. Beard, "Comparative advertising wars: an historical analysis of their causes and consequences", Journal of Macromarketing, Vol. 30, No. 3, 2010, pp. 270-286.
  12. ↑ C.L. Beck-Dudley & T.G. Williams, "Legal and public policy implications for the future of comparative advertising: a look at U-Haul v Jartran", Journal of Public Policy & Marketing, Vol. 8, No. 1, 1989, pp. 124-142.
  13. ↑ D.W. Jackson Jr., S.W. Brown & R.R. Harmon, "Comparative magazine advertisements", Journal of Advertising Research, Vol. 19, No. 6, 1979, pp.21-26.
  14. ↑ Palazzi, Pablo. "Comparative Advertising in Argentine Law" Fordham Intellectual Property, Media & Entertainment Law Journal, Vol. 22, No. 659, 2012. https://ssrn.com/abstract=2122583
  15. ↑ Murphy, Matthew Anthony. "Legal aspects of comparative advertising and a strategy for its use." Queensland University of Technology Law Journal 12 (1996): 41-59. LegalTrac. Web. 2 September 2011.
  16. ↑ Lieberman, Guidebook to Australian Trade Marks Law and Practice (2nd ed) (Sydney CCH, Australia, 1985) p.75
  17. ↑ Advertising and selling, Commonwealth of Australia, 2011.
  18. ↑ [1988] ATPR 40-846
  19. ↑ [2002] FCAFC 223
  20. ↑ [1995] ATPR 41-030
  21. ↑ [1988] ATPR 40-918
  22. ↑ [1991] ATPR 41-149
  23. ↑ B. Clarke, B. Sweeney & Mark Bender, Marketing and The Law, 4th edn, LexisNexis Butterworths, New South Wales, 2011.
  24. ↑ "Brazilian Advertising Self-Regulation Code" (PDF).
  25. ↑ DURIGAN, P. L. Publicidade comparativa: informação persuasiva e concorrência. pg. 248 http://www.paulo.durigan.com.br/artigos/publicidadecomparativa.pdf Archived 21 October 2013 at the Wayback Machine
  26. ↑ Bundesgerichtshof, Hellegold, GRUR 1931, 1299 ff., 1300; the German Supreme Court based its decision on the two grounds, namely that no one should be required to tolerate being another’s promotional tool, and that comparative advertising effectively permitted the advertiser "judge their own case".
  27. ↑ Bundesgerichtshof, Tauchkühler, GRUR 1970, 422
  28. ↑ Jean-Jacques Biolay, Publicité comparative, 902 Juris-classeur Concurrence Consommation 6 (2003).
  29. ↑ The Cour de Cassation (French Supreme Court) had permitted comparative advertising since 1986, Cass. com., 22 July 1986. The principles set out by the Court were codified by Law 92-60 of 1992.
  30. ↑ Official Journal of the European Union, No C 70, 21. 3. 1978, p. 4.
  31. ↑ See Article 4 of Directive 2006/114/EC
  32. ↑ The Court of Justice of the European Union (CJEU) has held that this does not preclude advertising promoting other types of goods from referring to goods with a designation of origin, as long as this does not result in a taking of unfair advantage; De Landtsheer Emmanuel SA v. Comité Interprofessionnel du Vin de Champagne, Case C-381/05.
  33. ↑ Article 8(1) Directive 2006/114/EC
  34. ↑ O2 Holdings Limited v Hutchison 3G UK Limited, Case C‑533/06, paragraph 36
  35. ↑ O2 Holdings Limited v Hutchison 3G UK Limited, Case C‑533/06, paragraph 51.
  36. ↑ Case C-381/05, De Landtsheer Emmanuel SA v. Comité Interprofessionnel du Vin de Champagne at paragraph 69.
  37. ↑ L'Oréal and others v. Bellure, Case C‑487/07, at paragraph 50.
  38. ↑ Smith v. Chanel, Inc., 402 F.2d 562 (1968)
  39. ↑ Case C‑487/07
  40. ↑ See comments of Lord Justice Jacob at paragraph 50 of L'Oréal and others v. Bellure and others [2010] EWCA Civ 535
  41. ↑ See e.g. Gangjee, Dev, and Robert Burrell. "Because You're Worth It: L'Oréal and the Prohibition on Free Riding." The Modern Law Review 73, no. 2 (2010): 282-95.
  42. ↑ Pendleton, Garland and Margolis, The Law of Intellectual and Industrial Property in Hong Kong (Hong Kong: Butterworths, 1994) pp 210-240.
  43. ↑ Ratcliffe v Evans [1892] 2 QB 524
  44. ↑ Consumer Council Ordinance, Cap 216, ss 4(1)(a) and 5(2)(d).
  45. ↑ Tackaberry, Paul. "Comparative advertising in Hong Kong: denigration and competition." Asia Pacific Law Review 5.1 (1996): 77. LegalTrac. Web. 2 September 2011.
  46. ↑ Pe, Roger (15 November 2013). "What if someone copies your ad?". Philippine Daily Inquirer. Retrieved 12 March 2022.
  47. ↑ M, Peitz & F, Barigozzi, Comparative Advertising and Competition Policy Archived 3 March 2016 at the Wayback Machine , School of Business Administration, Working Paper 19/2004, August 2004.
  48. ↑ Chartered Trading Standards Institute, Business-to-business marketing, Business Companion, accessed 15 August 2023
  49. ↑ P. England, "Advocate General says comparative advertising is not a matter of trade mark law", Journal of Intellectual Property Law & Practice, Vol.3, No. 5, 2008, pp.284-285.
  50. ↑ [2001] ETMR 235
  51. ↑ "Use of Competitors' Trade Marks and Comparative Advertising in the United Kingdom and Europe", Gillhams Solicitors and Lawyers 2008, http://www.gillhams.com/articles/389.cfm Archived 2 November 2011 at the Wayback Machine , viewed 1 September 2011.
  52. ↑ J. E. Villafranco, "Devoted to Intellectual Property Litigation & Enforcement", Woltens Kluwer Law & Business, Aspen Publishers, Vol. 16, No. 1, 2010, http://www.kelleydrye.com/publications/articles/1335/_res/id=Files/index=0/Villafranco_Law%20of%20Comparative%20Advertising%20in%20the%20US_010210.pdf Archived 15 April 2012 at the Wayback Machine , viewed 2 September 2011.
  53. ↑ Sherwin-Williams Company, Report # 3988 ( NAD/CARU Case Reports December 2002), citing AT&T Broadband, Report # 3914 ( NAD/CARU Case Reports June 2002).
  54. ↑ S. Zhang, F.R. Kardes & M.L Cronley, "Comparative Advertising: Effects of Structural Alignability on Target Brand Evaluations", Journal of Consumer Psychology, Vol. 12, No. 4, 2002, pp. 303-311.
  55. ↑ T.E Barry & R.L Tremblay, "Comparative Advertising: Perspectives and Issues", Journal of Advertising, Vol. 4, No. 4, 1975, pp. 15-20.
  56. ↑ I. Soscia, S. Girolamo & B. Busacca, "The Effect of Comparative Advertising on Consumer Perceptions: Similarity or Differentiation?”, Journal of Business and Psychology, Vol. 25, No. 1, 2009, pp. 109-118.
  57. ↑ K.E. James & P.J. Hensel, "Negative Advertising: The Malicious Strain of Comparative Advertising", Journal of Advertising, Vol. 20, No. 2, 1991, pp. 53-69.
  58. ↑ A. Chattopadhyay, "When Does Comparative Advertising Influence Brand Attitude? The Role of Delay and Market Position", Psychology & Marketing, Vol. 15, No. 5, 1998, pp. 461-475.
  59. ↑ F. Beard, "Comparative Advertising Wars: An Historical Analysis of Their Causes and Consequences", Journal of Macromarketing, Vol. 30, No. 3, 2010, pp. 270-286.
  60. ↑ A.B. Sorescu & B.D. Gelb, “ Negative Comparative Advertising: Evidence Favoring Fine-Tuning", Journal of Advertising, Vol. 29, No. 4, 2000, pp. 25-40.
  61. ↑ C.W. Nye, M.S. Roth & T.A. Shimp, "Comparative Advertising in Markets Where Brands and Comparative Advertising are Novel", Journal of International Business Studies, Vol. 39, 2008, pp. 851-863.
  62. ↑ F. Beard, "Comparative Advertising Wars: An Historical Analysis of Their Causes and Consequences", Journal of Macromarketing, Vol. 30, No. 3, 2010, pp. 270-286.
  63. ↑ ArtsHub ,"Breakup Campaign Wins Cannes Lions", http://www.artshub.com.au/au/news-article/news/arts/breakup-campaign-wins-cannes-lions-184492, viewed 30 August 2011.
  64. ↑ C.W. Nye, M.S. Roth & T.A. Shimp, "Comparative Advertising in Markets Where Brands and Comparative Advertising are Novel", Journal of International Business Studies, Vol. 39, 2008, pp. 851-863.
  65. ↑ [2010] R.P.C. 23.
  66. ↑ R.D. Petty & P.M. Spink, "Comparative advertising law in the European Community: Will the proposed directive harmonize across the Atlantic?”, Journal of Public Policy & Marketing, Vol.14, Issue 2, 1995, pp. 310-317.
  67. ↑ C.W. Nye, M.S. Roth & T.A. Shimp, "Comparative Advertising in Markets Where Brands and Comparative Advertising are Novel", Journal of International Business Studies, Vol. 39, 2008, pp. 851-863.
  68. ↑ "The 12 Most Intense Marketing Wars Ever". Business Insider Australia. 8 June 2011.
  69. ↑ Petrecca, Laura (11 January 2013). "Pepsi, Bud join forces to make Super Bowl splash". USA Today . Retrieved 25 January 2013. SodaStream will have a humorous commercial that promotes sustainability and takes a jab at conventional bottle and can soft-drink marketers.
  70. ↑ Rocco, Matthew (9 January 2013). "U.K.-Banned SodaStream Ad Will Air During Super Bowl". Fox Business . Archived from the original on 4 January 2014. Retrieved 25 January 2013.
  71. ↑ Parekh, Rupal (26 November 2012). "SodaStream Campaign by Alex Bogusky Gets Yanked in the U.K." Advertising Age . Retrieved 25 January 2013.
  72. ↑ Thomas, Charlie (23 November 2012). "Sodastream Advert Pulled From I'm A Celebrity Slot For 'Denigrating Bottled Drinks'". HuffPost . Retrieved 25 January 2013.
  73. ↑ Sweney, Mark (28 November 2012). "SodaStream 'black' TV ad protests regulator's ban on original campaign". The Guardian . Retrieved 26 January 2013. SodaStream's campaign, which in the end frame hints to viewers that the censored ad is available to watch on YouTube, is aiming to put pressure on regulators who are currently assessing an appeal by the company over its original TV ad onscreen, which is due to be decided on 3 December.
  74. ↑ Vinjamuri, David (27 November 2012). "SodaStream Scores Another PR Break: Bogusky's Ad Rejected in the UK". Forbes . Retrieved 26 January 2013. But that's hardly the kind of denigration that deserves censorship.
  75. ↑ Hall, Emma (4 December 2012). "SodaStream Seeks Legal Advice After Failed Appeal on U.K. Ad". Advertising Age . Retrieved 26 January 2013.
  76. ↑ Burns, Will (31 January 2013). "CBS Bans SodaStream Ad. Where's The Outrage?". Forbes. Retrieved 1 February 2013.
  77. ↑ Horovitz, Bruce (15 January 2013). "Ad legend bashes Coke, Pepsi in Super Bowl return". USA Today . Retrieved 25 January 2013.
  78. ↑ Stampler, Laura (4 December 2012). "That Awesome Banned SodaStream Commercial Is Going To Be A Super Bowl Ad". Business Insider . Retrieved 25 January 2013.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.