The following is for educational purposes, and not meant to be legal advice.
In the EEA, comparative advertising is defined as any advertising (including informal oral discussions with, or letters addressed to a limited number of, targeted customers), which explicitly or by implication identifies a competitor or its goods or services.
Comparative advertising is present if competitors or their products are named or identifiable from an ad’s context, even when the advertiser does not promote the superiority of its products.
Comparative advertising is present if the comparison relates to all competitors of a certain product, and the public is able to identify the competitors to whom reference is made.
Comparative advertising is permitted when an ad:
(a) objectively compares, one or more, but not necessarily all, features and functionalities (including price) of competing goods or services that are material, relevant, verifiable (factual and accurate), fairly chosen and representative;
Example: Company only describes to a potential customer its own software products, and does not describe the features of a competitor’s products. Company offers the potential customer a discount should the customer swap the licenses it has with the competitor for the purchase of Company’s products. Company’s referral to the competitor’s products impliedly represents that Company’s products have equivalent technical features. If this is not the case, Company should expressly point out all relevant differences between its products and the competitor’s products.
(b) makes a comparison between goods or services meeting the same needs or intended for the same purposes;
(c) is not misleading (i.e. deceptive or omitting information concerning availability, date of manufacture, fitness for purpose, quantity, specification, geographical or commercial origin, results to be expected from use, price or manner in which price is calculated, conditions on which the goods or services are provided, the identity and qualifications of the advertiser, results and material features of tests carried out on goods or services);
(d) does not create a risk of confusion between the advertiser and its competitors, or between the advertiser’s trademarks, trade names, other distinguishing marks, and goods or services, and those of its competitors;
(e) does not discredit, denigrate or bring contempt on the trademarks, trade names, goods or services or activities of a competitor, and does not principally capitalize on the reputation of a trademark or trade name of a competitor (i.e. advertiser may claim that its products are objectively superior to those of a competitor, but may not state that the competitor’s products are inferior or of low quality);
(f) does not refer to the personality of a competitor (i.e. does not present goods or services as imitations or replicas of goods or services bearing a protected trademark or trade name);
(g) always compares products having the same designation of origin, if applicable;
(h) indicates the following if the advertisement features “special offers” or limited duration offers: (1) date on which the offer begins and ends; (2) whether the offer is subject to limited availability of the goods or services; (3) any special price or specific conditions.
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