Consumer law/free movement of goods: Comparative Advertising Directive adopted to harmonise the application of comparative advertising in Member States

United Kingdom
Comparative advertising

The Council and the European Parliament have adopted a Directive (97/55) on comparative advertising. The Directive aims to harmonise the application of comparative advertising in Member States to help to complete the single market, improve information availability for consumers and encourage competition.

The Directive extends the scope of the Directive on misleading advertising (84/450) to include comparative advertising. 'Comparative Advertising' is defined as 'any advertising which explicitly or by implication identifies a competitor or goods or services offered by a competitor.'

The Directive requires that the comparative advertising is not 'misleading.' 'Misleading advertising' means any advertising which in any way, including its presentation, deceives or is likely to deceive the persons to whom it is addressed or whom it reaches and which, by reason of its deceptive nature, is likely to affect their economic behaviour or which, for those reasons, injures or is likely to injure a competitor.

Comparative advertising is permitted if certain specified criteria are fulfilled:

  • it compares goods or services meeting the same needs or intended for the same purpose;

  • it objectively compares one or more material, relevant, verifiable and representative features of those goods or services, which may include price;

  • it does not create confusion in the market place between the advertiser and a competitor or between the advertiser's trade marks, trade names, other distinguishing marks, goods or services and those of a competitor;

  • it does not discredit or denigrate the trade marks, trade names, other distinguishing marks, goods, services, activities, or circumstances of a competitor;

  • for products with designation of origin, it relates to products with the same designation;

  • it does not take unfair advantage of the reputation of a trade mark, trade name or other distinguishing marks of a competitor or of the designation of origin of competing products;

  • it does not present goods or services as imitations or replicas of goods or services bearing a protected trade mark or trade name.

The Member States are required to implement the Directive by April 2000.