Comparative Advertising Directive

EU member state law with respect to Comparative Advertising was highly inconsistent, with some states quite permissive (e.g., the UK, Ireland, Portugal) and most others prohibiting it outright in most circumstances, even when accurate.  This created problems in the single market since advertising could and did leak across borders, while the prohibition was seen as anticompetitive and favouring market incumbents.  To harmonise the law across member states, the EU adopted a Directive “concerning misleading advertising so as to include comparative advertising” 1997 O.J. L 290/18. The effect of that directive is to make comparative advertising in the EU broadly legal provided:

  • The advertising does not mislead;
  • It compares goods and/or services manufactured or supplied to or for like needs or purposes;
  • It compares the properties of the competing goods objectively, comparing properties or price;
  • It does not create market confusion in the marketplace;
  • It does not discredit or denigrate a competitors trade marks, trade names, goods or services;
  • When comparing products identified by a specific designation of origin (i.e., a GDO) is compares them with goods of the same origin;
  • It does not take advantage of the reputation of a competitor’s trade mark, trade name or similar of a competitor;
  • It does not suggest that the product is an imitation or replica of the product it is compared to.