Legal position with comparative advertising
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- Created: Monday, August 18 2014 16:58
Comparative advertising, that is any advertising placed by your competitor that identifies your goods or services, is regulated by the Misleading and Comparative Marketing Communications Regulations 2007.
The Regulations provide you with protection against misleading or false comparative advertising.
The Regulations state that comparative advertising is unlawful if:
- it is misleading
- it does not compare products meeting the same needs or intended for the same purpose
- it does not objectively compare one or more material, relevant, verifiable, and representative features of those products
- it discredits or denigrates a competitor’s trade mark
- it relates to products with different designations of origin
- it takes unfair advantage of the reputation of a competitor’s trade mark
- it presents goods or services as imitations or replicas of goods or services protected by trade mark; or
- it creates confusion in the marketplace between the advertiser and a competitor's trademark or products.
An ad will be misleading if it is deceptive in nature and is likely to affect either a person's economic behaviour, for example your customers' purchasing decisions, or injure your business in some other way. It can also be considered misleading if material information has been omitted or concealed.
Therefore, if your competitor’s ad is making false claims about your business, it could be considered misleading for the purposes of the 2007 Regulations. You should write to your competitor pointing out the false nature of the ad and request that it be withdrawn immediately. If the ad is not withdrawn, then you should consider bringing an application to court seeking a Prohibition Order to restrain the continued publication of your competitor’s ad. The court can also order that your competitor publish a corrective statement.
An action under the 2007 Regulations can be taken either in the High Court or the Circuit Court, depending on the nature and extent of the ad and the estimated cost to your competitor in complying with the court order. The Circuit Court is likely to be appropriate, unless the ad is place in the national media.
Other common law remedies may be available to you, such as taking legal proceedings for “malicious falsehood”. However, it is likely to be far simpler and more cost effective to proceed under the Regulations.