Sunday, July 17, 2011

Jurisdictional Hues of Comparative Advertising

Watching television and comparing styles, rip offs and advertisements in particular can be pretty amusing. To add, a fantastic Trademark teacher helps build bridges, and rationalize many a time the whys and whats of multifarious issues that involve cultural, legal and market related aspects.

For anyone who has seen a fair amount of US and Indian advertisements, would first realize, how blatantly brands practice comparative advertising in the US. How clearly they name competitors, talk about how they are better and also have such clear disclaimers regarding side effects, possible allergies, side effects and other aspects to “beware” of.

The rule of Buyer BEWARE which governs US Consumer Protection laws extrapolates fairly well to the ambit of comparative advertising as well.

One of the reasons that Comparative advertising in the US is openly comparative, is that the Lanham act sufficiently provides for such a scope. While blatant claims can be made, companies are expected to make only true and scientifically proven claims- lest they be charged of False and Misleading advertising, under the Lanham Act. In addition, while Puffing is acceptable, it is Literal Falsehood that is disallowed!

To add, the reason that the US is very forthcoming in its Comparative advertising practices is that the Federal Trade Commission (FTC) monitors advertising and requires companies to maintain on file, proof for the claims they make. The other pertinent bit to note is that rights to a Trademark are governed by Use in Commerce, which also in certain cases preempts federally registered marks to trump over common law marks.

The EU on the other hand seems to condemn comparative advertisement in toto. If one were to look at similar claims made both in EU and US in case of a certain perfume related advertisement (Chanel I think) the outcome in the two jurisdictions were completely opposite. The EU disallowed such a claim, while the US Courts allowed a claim stating that since the claim was only one of likeness and not a claim to being exactly the same was sufficient to escape liability under §43(a)(1)(B) of the Lanham Act governing False and Misleading advertising.

India seems to have an interesting positioning on the subject - towing a very fine line between the European and US practices- Use of superlatives being allowed, similar trade dress being allowed, but disallowance of the flagarant use of competition’s identity or reference to his claims may be made- the stronger, sharper, faster Horlicks campaign related cases affirming this stance in Indian Jurisprudence.

How I see some semblance and parity in the practices is by looking at the jurisprudential rationale governing the various schemes. While all three jurisdictions attach a sufficiently strong Property notion to trademarks in general, their perspective on treatment varies when it comes to comparative advertisements.

The US seems to look at comparative ads from a consumer friendly perspective. The Use in Commerce requirement governing TM practices along with the above cited provisions makes it evident. This is also perhaps why Art 1 Section 8, Clause 8 does not have a place for Trademarks. Even when it comes to Bankruptcy law and treatment of Trademarks and related assets therein- the treatment appears different, owing to consumer interests coming into play.

The EU on the other hand, as I see, seems to have great respect for IP as a pure property, thanks to its constant propagation of the Lockean Labour and Hegelean Personality Justification theory. In my eyes while both of these overlap in their law, it seems that the EU in the multitude of IP regimes comes about enforcing this theory very forcefully.

The Indian law on the other hand in towing a fine line between the two regimes - to me appears to be finding a balancing of interests in an attempt to not adopt an extremist approach. If I were to opine as to what is the correct approach, I am of the each one to itself stand… since each of the jurisdictional practices, at least prima facie, seem to be in tandem with a rationale that each of these countries have adopted.

The take away from this is that as many an amateur would consider “intellectual property” as international property, the same is in fact not. Even the marketing folks working on global ad campaigns will sooner or later need to understand the nuances of trademark law in everything they do. And as lawyers, while we will play Priest, Counsel and Teacher, the roles must be played with utmost caution and consideration to the subject matter and jurisdiction dealt with.

While I appear to be going round and round in circles, I warn our readers that this is what I shall often do, dwelling on aspects which often may appear to be unrelated or even inconsequential to the issues in practice, but continue to intrigue or at times even simply amuse me!!! I welcome the brick bats along the way…

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