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Googe, Charles H.; Clayton, Lewis --- "Comparative Advertising in the United States" [2006] ELECD 231; in Phillips, Jeremy (ed), "Trade Marks at the Limit" (Edward Elgar Publishing, 2006)

Book Title: Trade Marks at the Limit

Editor(s): Phillips, Jeremy

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845427382

Section: Chapter 3

Section Title: Comparative Advertising in the United States

Author(s): Googe, Charles H.; Clayton, Lewis

Number of pages: 9

Extract:

3. Comparative advertising in the United
States
Charles H. Googe, Jr and Lewis Clayton
While European law is sceptical of comparative advertising, US law embraces
it. As long as it does not confuse or deceive the public, an American advertiser
has a good deal of freedom to use a competitor's trade name, trade mark, or
other distinctive features in comparative ads. While American statutory and
common law prohibits false advertising, it is not considered unfair to analyse
or criticize another's product as long as it is done truthfully. In fact, the Federal
Trade Commission and US courts encourage truthful comparative advertising,
and truthful advertising is considered commercial speech that is entitled to
protection under US constitutional law.


THE ROOTS OF US COMPARATIVE ADVERTISING LAW
The differences between American and European treatment of comparative
advertising law arise in part from different conceptions about the role of trade
marks. US law encourages competition, while the EU takes a more cautious
approach to comparative claims. With respect to comparative advertising,
even now that the EU is moving in the American direction with its Misleading
and Comparative Advertising Directive,1 the ability to engage in comparative
advertising in Europe is limited. Comparative advertising must `objectively
compare one or more material, relevant, verifiable and representative features
of those goods and services . . .'.2 Aside from the fact that this subject matter
restriction is difficult to interpret, it inhibits advertisers from comparing prod-
uct attributes that may be important to consumers but simply a matter ...