Trade Marks and Comparative Advertising

Abstract

In terms of South African law, comparative advertising may be unlawful on two grounds, namely the common law relating to unlawful competition and infringement of a registered trade mark. Under the common law comparative advertising is generally permitted unless the advertisement contains untrue disparaging allegations. As far as trade-mark legislation is concerned, it was generally believed that comparative advertising amounted to trade-mark infringement. However, recent decisions in Europe and South Africa have introduced restrictions into the infringement provisions which limit the infringement rights of trade-mark proprietors. This article discusses these restrictions and compares the approaches adopted in Europe and South Africa and their effect on the lawfulness of comparative advertising.