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Chasing the Competition: Can Comparative Advertising Get You in Trouble?
By Jeffrey A. Babener
Excerpted from Network Marketing: What You Should Know, Jeffrey Babener, Legaline Publications
MLM consultant practice tips. An experienced MLM Legal Expert and MLM Law Advisor may become the most important part of an MLM Corporate team.   This person has experienced almost every MLM Business and Legal Issue and will likely provide experienced MLM Insight and guidance on MLM Business and MLM Law Related issues.    MLM Legal and MLMLegal.com and Babener and Associates provides expert MLM Consultant and MLM Consulting advise on MLM corporate, MLM software, MLM Compensation, MLM Taxes, etc. MLM Consulting is an important component for MLM startup.  Careful Choice of MLM Software is another component of MLM Corporate.  An MLM Consultant and MLM Law and MLM Legal is part of the MLM Startup Team.  MLM Compensation must be reviewed by an MLM Consulting standpoint by an MLM Consultant and MLM Legal and MLM Law professional and programmed by a MLM Software and MLM Technology provider.

Fashionable Battles

Many comparative advertising battles have been fought in the perfume and cosmetics markets.   One major case pitted Calvin Klein and his scent, Obsession, against a deliberate copy sold by a company in a highly similar bottle.   The so-called "knock-off" also advertised its product by using Klein's Obsession trademark and a picture of an Obsession bottle on its in-store advertising.

An appellate court overturned an injunction issued by the lower court prohibiting the defendant from using the Obsession trademark or the similar bottle.   The court stated the rule that an imitator may use a competitor's trademark when advertising its product so long as it is used in a truthful way and does not create confusion in the consumers' mind as to the product's source.  

On the other hand, Yves Saint Laurent was able to convince a court that a "copycat's" use of his trademark in comparative advertising constituted trademark infringement.   In this case, a knock-off artist was selling perfume in packages that prominently displayed the legend "If you like Opium, you'll love Omni."   On a portion of the box (which was not visible to the consumer until the box was opened), the defendant placed a disclaimer stating that Opium was Saint Laurent's registered trademark and was not associated with the defendant.

In one recent case, a court stated that these comparison advertising cases are best understood as involving a "non-trademark use of the mark - a use to which the infringement laws simply do not apply..."   In this case, the court reasoned that the mark was used to describe the thing, and without using the mark, it was impossible to refer to a particular product for purposes of comparison.  

For example, it would be impossible for auto makers to compare their products with the competition if they were forced to refer to the competition as "a large automobile manufacturer based in Michigan" as opposed to "Ford."   As long as the competitor's mark   is used to identify the competitor's product and is not an attempt to pass off one's own goods under the competitor's mark, or to imply sponsorship or endorsement, there is no infringement.

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