Comparative advertising
The earliest court case concerning comparative advertising dates back to 1910 in the United States – Saxlehner v Wagner.
For instance, comparative advertising could invite misidentification of products, potential legal issues, and might even win public sympathy for their competitors as victims.
[10] 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] 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.
Numerous cases follow international precedent in referring to the requirements of the European Union Directive on comparative advertising.
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[24] In an early Mercosur's rules through Resolution 126/96.
In this regard, EU law contrasts starkly with the US approach; the US courts have long held[37] that traders are allowed to the trademarked names of products they have imitated in advertising.
In contrast, in L'Oréal and others v. Bellure,[38] 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[39] and by scholars,[40] 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.
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.
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] 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".
Studies have suggested that negative information can be stored more effectively,[59] thus generating the impact that any advertisement is purposed for, and more importantly, strong recall.
[65] 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.
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 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.
A 30-second commercial promoting sustainability,[68] showing soda bottles exploding each time a person makes a drink using his Sodastream machine, was banned in the United Kingdom in 2012.
