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Legal Aspects of Comparative Advertisement as a Competition Accelerator - Focusing on the U.S. and EU Legislation and Court Cases -

  • DONG-A LAW REVIEW
  • 2011, (51), pp.395-440
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

김종호 1

1호서대학교

Accredited

ABSTRACT

Only recently, many competition authorities over the world tend to agree on comparative advertising being helpful in promoting competition. They now encourage firms to use it. The reason is that the comparative advertising, if fair and not misleading, increases consumers’ information about alternative brands. Antitrust authorities should encourage the use of comparative advertising because, if fair and not misleading, it conveys useful information to consumers and can increase competition in the market place. The aspect of comparative advertising most relevant for antitrust authorities is its role in transmitting information to consumers. This is related to the important issue of how information can be transmitted by an interested party to another economic entity and rises the problem of credibility. Here, competition policy and legal practice are essential in making comparative advertising informative. Competition policies, antitrust laws and their implementation are essential in making a comparative advertising campaign credible. This is important because only if claims are credible, comparative advertising can convey some useful information to consumers. If firms diffusing misleading ads are not punished, all claims become empty: comparative claims which are defined non actionable mere puffery becomes equivalent to generic ad and are not informative. The way consumers interpret advertising is important for the court, as implying falsity claims prove. If consumers are sophisticated enough such that they distinguish between comparative advertising containing puffery and other comparative advertising claims, also the legal attitude in the U.S. does not interfere with the flow of information from firms to consumers. In this paper, I explore a legal background of comparative advertising in Europe and the U.S. I provide an analysis of some recent legal cases in Europe and the U.S. Overall, I focus on the scope of information transmission through comparative advertising and on the way antitrust laws affect it. In this work, I explore the legal background of comparative advertising and the current legislation with respect to comparative ads in the U.S. and Europe. I also present a number of legal cases. They suggest additional considerations with respect to the issues regarding comparative advertising. They also provides an answer when designing competition policy with respect to comparative advertising.

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