Emily Walton looks at Comparative Advertising, to name it politely, in The New Millennium. We had the first UK judgement, under the Trade Marks Act 1994, to decide that a comparative advert had been untruthful, and thus a trade mark infringement.
Comparative advertising can be a minefield for advertisers.
They must comply with regulatory codes and the trade descriptions legislation. They must ensure they do not infringe the trade marks or copyrights of their competitors and avoid claims for malicious falsehood. There have been a number of high-profile trade mark infringement cases since 1995 dealing with comparative advertising. However, the courts have taken a pragmatic view that comparative advertising should be permitted unless the advertisement is not honest or significantly misleading. The four claimants mentioned were all unsuccessful in their efforts to stop their competitors using their trade marks in comparative advertisements as well as in their claims for malicious falsehood.