The Law of Comparative... | Buy

This book consists of a careful analysis of the comparative advertising directive,giving background both to the regulation of comparative advertising in the United Kingdom and Germany and to the passing of the directive. It will bring to a UK reader the latest in thinking on comparative advertising from Germany, where the directive has been the subject of very extensive recent debate. The book also has four appendices in which UK, German and European material is given (all in English).The directive applies to any advertisement (or indeed any representation of any kind made to promote goods or services) that explicitly or implicitly identifies a competitor. It therefore has the potential to regulate such claims as

Dr. Ansgar Ohly is currently IS section head of the Commonwealth Referat of the Max-Planck-Institut fur auslandisches und internationales Patent -, Urheber-, und Wettbewerbsrecht.

Introduction

1

(5)

Comparative Advertising in the United Kingdom

5

(24)

Self-Regulation

6

(2)

Common Law

8

(8)

Passing Off

8

(1)

Injurious Falsehood

9

(4)

Defamation

13

(3)

Statute

16

(10)

Civil and Criminal Actions

16

(2)

Trade Mark and Comparative Advertising

18

(1)

Trade Marks Act 1938 section 4(1)

19

(3)

Trade Marks Act 1994 section 10(6)

22

(4)

Conclusion

26

(3)

Comparative Advertising in Germany

29

(12)

The History of 1 UWG

31

(2)

The Application of 1 UWG to comparative Advertising

33

(4)

The Judicial Implementation of the Directive

37

(4)

The History, Scope and Exclusivity of the Directive

41

(16)

History of the Directive

4

(40)

Scope of the Directive

44

(7)

`Advertising'

44

(1)

`Competitor'

45

(1)

The Mode of the Comparative Reference

46

(2)

The Content of the Comparative Reference

48

(3)

Exclusivity of the Directive

51

(6)

Pre-emption of More Liberal Regimes

51

(1)

Pre-emption of Trade Mark and Copyright Law

52

(5)

The Substance of the Directive

57

(30)

The Apparent Purpose of the Directive

57

(2)

Comparative Advertising Incapable of Assisting Rational Consumer Choice

59

(17)

Misleading Advertising

59

(7)

Comparing Like with Like

66

(3)

Objectively Comparing Material, Relevant, Verifiable and Representative Features

69

(1)

The Interpretation of Article 3a(1)(c)

69

(3)

The Breadth of Article 3a(1)(c)

72

(2)

The Policy of Article 3a(1)(c)

74

(2)

Comparisons that do More than is Necessary to Assist Rational Consumer Choice

76

(11)

Denigration

80

(2)

Taking Unfair Advantage

82

(5)

The Implementation of the Directive

87

(4)

The Way Forward

91

(6)

Appendix I United Kingdom Materials

97

(46)

1. Advertising Code

97

(1)

2. The ITC Code of Advertising Standards and Practice

98

(1)

3. Radio Authority Advertising and Sponsorship Code

99

(1)

4. Trade Marks Act 1994, section 10(6)

100

(2)

5. Barclays Bank PLC v. RBS Advanta (Chancery Division, 26 January 1996, Laddie J, [1996] RPC 307)

102

(6)

6. Vodafone Group PLC v. Orange Personal Communications Services Ltd. (Chancery Division, 10 July 1996, Jacob J [1997] FSR 34)

108

(11)

7. British Telecommunications PLC v. AT & T Communications (UK) Ltd., (Chancery Division, 18 December 1996, M. Crystal QC Unreported)

119

(8)

8. Cable & Wireless PLC v. British Telecommunications PLC (Chancery Division, 8 December 1997, Jacob J [1998] FSR 383)

127

(6)

9. Emaco Ltd. v. Dyson Appliances Ltd., (Chancery Division, 26 January 1999, Parker J, Unreported)

133

(10)

Appendix II German Materials

143

(24)

1. Gesetz gegen den unlauteren Wettbewerb

143

(1)

2. Testpreis-Angebot (Bundesgerichtshof, 1ZR 211/95, 5 February 1998)

143

(9)

3. Preisvergleichsliste II (Bundesgerichtshof, No. 1 ZR 2/96, 23 April 1998)

152

(4)

4. Vergleichen Sie (Bundesgerichtshof No. 1 ZR 69/96, 15 October 1998)

156

(5)

5. McDonald's/Burger King (Landgericht Koln No. 81 0 185/98, 29 January 1999)

161

(6)

Appendix III European Community Preparatory Materials

167

(56)

1. Explanatory Memorandum to the Draft of 1991, COM (91) 147 final-SYN 343, Brussels, 21 June 1991

167

(21)

2. Explanatory Memorandum to the Draft of 1991, COM(94)151 final-COD 343, Brussels, 21 April 1994

188

(8)

3. Opinion of the Commission on the European Parliament's Amendments to the Council's Common Position (COM(96) 700) final-DOC 343, Brussels, 13 December 1996

196

(2)

4. The Text of the 1991 Draft, 1994 Draft and Council's Common Position

198

(25)

Appendix IV Directive 97/55/EC (OJ 1997 L290/18)

223

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