EC proposals on comparative advertising

Ross Denton

If the Directive goes through, new rules will better define trademark issues, and (with safeguards) permit reference to competitors' marks. Individual EC countries will not be able to apply more stringent constraints of their own.

The European Commission has recently published its proposals dealing with regulation of comparative advertising. The proposals are in the form of a Directive, and operate as an amendment to Directive 84/450/EEC on misleading advertising, implemented in the UK as the Control of Misleading Advertisements Regulations 1988.

If the proposal for the Directive is passed by the Council, it will have to be implemented by Member States no later than 31 December 1992.

The proposal in its Preamble stresses the potential beneficial effect of fair and accurate comparative advertising, noting that 'comparative advertising helps demonstrate the merits of various products within the relevant range' and 'can ... stimulate competition between suppliers of goods and services to the consumers advantage'. However, set against these positive benefits, the Preamble notes that comparative advertising can be used in an unfair and anti-competitive manner. To prevent such negative effects, the proposal is designed only to permit comparisons between 'competing goods and services of the same nature'.