n South African Law Journal - Comparative advertising : the more things change...

Volume 129, Issue 1
  • ISSN : 0258-2503
  • E-ISSN: 1996-2177



This contribution considers the question of comparative advertising in three contexts. Firstly, with regard to European law, relevant legislative instruments in the form of directives are analysed, in particular the Directive on Misleading and Comparative Advertising (DCA). Case law indicates that the Trade Marks Directive and the DCA should be interpreted to mean that the proprietor of a registered mark is not entitled to prevent the use of a mark in a comparative advertisement, if the use complies with the requirements for such an advertisement, as stipulated in the DCA. Later case law extends protection of a mark to include its advertising function. Secondly, it is noted that the DCA is not considered by British courts to exclude the operation of domestic legislation. This could imply, on a practical level, that a more lenient approach to that prevailing in terms of the DCA might apply. Thirdly, with regard to South Africa, it appears that the Supreme Court of Appeal has cleared the way for the greater use of comparative advertisements. However, rulings of the Advertising Standards Authority (ASA) seem to follow a more restrictive approach. It is suggested, lastly, that the ASA currently does not accord enough weight to the Constitution.

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