Comparative advertising could constitute trademark infringement even if the trademark is well known. [“Naar voorlopig oordeel is het gebruik van een merk als Adword noodzakelijk voor een doeltreffende vergelijkende reclame op internet. In conducting such an analysis, it reveals Use of Trademark In Comparative Advertising: India enacted its new Trademarks Act 1999 (the TM Act) and the Trademarks Rules 2002, with effect from 15th September 2003, to … The issue of comparative advertising became common after trademark legislation made it easier to sue competitors for advertising attacks. There is a whole area of law surrounding false advertising, but under trademark law, it is important to be aware that you have This analysis will in turn help in Comparative advertising is a strategy used by companies to represent their product as superior in comparison to that of a competitor. Comparative Advertising The introduction of the European Comparative Advertising Directive 2006 and its implementation into UK law has allowed for companies to advertise their goods alongside those belonging to a third party as long as certain conditions are met. Up to a certain extent, it is. comparative advertising acceptable competitive behaviour and law of disparagement But if care is taken to address those risks, comparative advertising can be an incredibly effective tool for your business. Section 30(1) of the Trademarks Act, 1999 states that … trademark dilution claims in cases of comparative advertising. Is comparative advertising permitted under the Trademarks Act, 1999? 1994). Comparative advertising is a risky method of advertising. Comparative advertising has been held up as an exception to trademark law, yet it has always been strictly circumscribed by reference to trademark law. 559) (TMO) and provided important guidance on the use of trademarks in the context of comparative advertising. Direct Comparative Advertising: This type of advertisement deals with the competing products either are explicitly named or can be precisely identified (by photos, images or trademark). Regarding trademark infringement, Singapore does have an exception for comparative advertising. Comparative advertising is often said to be one of the riskiest forms of advertising in a legal context, as it typically involves deliberately rankling your competitor and sometimes treading on their intellectual property rights. To date, however, there has been no comprehensive economic analysis of this panorama. For example, use of a third-party trademark in truthful comparative advertising, so long as the use is not misleading and does not create confusion among customers, is fair. Comparative claims may vary in na - ture. See Deere & Co. v. MTD Prods, Inc ., 41 F.3d 39 (2nd Cir. competitor’s trademark at all. According to the Trademark Law Revision Act of 1988, anyone is vulnerable to a civil The Advertising Standard Council of India (ASCI) in its Code for Self Regulation of Advertising content in India ( see: ), offers a few thumb rules for making comparative claims. The extent of zone may vary according to the circumstances. Up to a certain extent, it is. Comparative Advertising: Avoiding Trademark Infringement, Disparagement Lessons From Recent Cases, Avoiding Pitfalls, and Substantiating Comparative Claims … Comparative advertising may refer to an indeterminate number of competitors. Comparative advertising has become an effective tool as a marketing strategy for manufacturers which enables a manufacturer to show the superiority or better value of its products over others. Section 29(8) of the Trademarks act 1999 states about comparative advertisement as-A registered trademark is infringed by any advertising of that trade mark if such advertising— takes unfair advantage of and is contrary to honest Comparative advertisement and product disparagement are sensitive subjects to manufacturers of goods and services. Comparative advertising is described as “advertising that compares alternative brands on objectively measurable attributes or price, and identifies the alternative brand by name, illustration or other distinctive information.” form of advertising in which a trademark owner at-tempts to enjoy pecuniary benefits from a compari-son between his product, service, or brand and that of a compet itor. This article seeks to fill that gap. As per this provision, in case of comparative advertising, a registered trademark may be infringed if the concerned advertisement-Takes unfair advantage and is contrary to the honest practices in industrial or commercial matters; or When a comparative advertisement makes a comparison that is misleading and/ or derogatory, it crosses over into what is … For example, in Kimberley-Clark Limited v The Fort Sterling Limited ([1997] FSR 877) an injunction was granted against the sale of toilet paper that featured a competitor’s logo on its packaging where the disclaimer was held to be too small to be noticed by consumers. Here, we rounded up nine examples of comparative advertising to inspire your The entire concept of ‘disparagement of goods of another person’ flows from the MRTP Act which leads to unfair trade practice The issue of comparative advertising became common after the Trademark legislation made it easier to sue competitors for advertising attacks. Thus, advertising claiming the superiority or uniqueness of a product constitutes a form of comparative advertising. In a comparative advertising campaign which involves the use of a competitor’s trademark, the emphasis should be on promoting the product based on the differences, not the similarities, between the two products. Section 30(1) of the Trademarks Act, 1999 states that it is not infringement to use a registered trademark with the purpose of Dr Owen Dean, Intellectual Property and Comparative Advertising, Intellectual Property and Comparative Advertising Selven and Selvan, Comparative advertisement and trademark infringement, Comparative advertisement and Since the trademark was altered by a competitor, and the alteration was seen as a negative portrayal of that trademark, the use of the altered logo in the comparative advertising was prohibited. Comparative Studies with Other Countries Chapter-4 4.1 4.1 COMPARATIVE ADVERTISING AND TRADEMARK LAW IN OTHER COUNTRIES: AN OVERVIEW Similar to the Indian legislation According to the Trademark Law Revision Act of 1988, anyone is vulnerable to a civil action Since the trademark was altered by a competitor, and the alteration was seen as a negative portrayal of that trademark, the use of the altered logo in the comparative advertising was prohibited. Comparative advertising can be a powerful tool when it comes to making your product or service standout. The purpose of my dissertation is to examine the various cases on Comparative Advertisement and how have different jurisdictions dealt with them on the basis of their statutes and judgements. The status of comparative advertisement in foreign countries like U.K. and USA is more liberal when compared to India. Due to inter-relationship between comparative advertising and trademark law, Directive 2008/95/EC is also relevant Comparative advertising is ordinarily legal and permissible if it meets certain basic conditions. The tests include, standard used in deciding a case of comparative advertisement, test of 'honest' advertising as per section 29(8) and 30(1), and test of a 'misleading advertisement'. They may 5 6 7 . Comparative advertising is permitted under eight conditions, which are regulated in Directive 2006/114/EC. There is also the case of Hong Kong SAR, China, that has a “fair dealing” exception to copyright infringement, but unlike in some other common law jurisdictions, parody does not fall under the “fair dealing” exception in this country. As mentioned above, unlawful comparative advertising may incur liability for trademark infringement and injunctive action. See Deere & Co. v. MTD Prods, Inc ., 41 F.3d 39 (2nd Cir. Any such act disparaging the goods or services of another shall not only The case is the first decision the Hong Kong Court has made on section 21 of the Trade Mark Ordinance (Cap. Is comparative advertising permitted under the Trademarks Act, 1999? An identical or mark which is extremely similar to existing trademark must be kept in distance in respect to goods and services in which the mark is registered. Comparative advertising by means of using another’s trademark is permissible, however while doing so the advertiser cannot disparage the goods or services of another. 1994). Indirect Comparative Advertising: It does not directly refer to competing brand names. Use of Disclaimers or Disclosures In some cases Part-5: Comparative Advertising and Infringement of Trademark | Trademark creates a exclusive zone for the owner which other marks may not enter. 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