Ask Andy - Comparative advertising | Davis Blank Furniss Solicitors

Like many businesses, we have found the last couple of years tough. Things are starting to pick up but we’ve now realised that we need to take a more aggressive stance if we want to get our name out there; especially as we believe that we’re better than our nearest competitor. We have earmarked quite a lot of money for an advertising campaign but are we allowed to refer to them by name in our adverts as that would make a big difference in terms of impact?

The short answer is that you can engage in comparative advertising provided that you do it fairly. This law was significantly changed in 2008 by the ‘Business Protection from Misleading Marketing Regulations’. The Advertising Standards Agency has mirrored these Regulations in its most recent codes of practice which came into force in September 2010. A comparative advertisement must not be misleading, must compare ‘like for like’ goods or services, and features that are compared must be relevant, representative and objectively verifiable. It also shouldn’t cause confusion, shouldn’t present goods as imitations of trademarked products and shouldn’t ‘freeride’ on a much more famous product or trade mark. Most of the complaints to the ASA are about unfair price comparisons. However, there is also danger for aggressive advertisers as advertising that discredits or denigrates a competitor, its products or brands is forbidden. You shouldn’t directly attack or mock your competitor. If you get it wrong the competitor could complain to the Advertising Standards Authority or the OFT or sue you for trade mark infringement.  There is also some authority that reproductions of competitor’s logos or artwork may be a breach of copyright. In extreme cases the OFT may decide to take proceedings for breach.’

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