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
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New Game. Old Rules.
The use of a competitor's name or product in advertising is a relatively new concept. Prior to the late 1960s, advertisers were reluctant to name their competitors or their competitors' products. Comparison ads were carried out by comparing their own products with "Brand X."
This reluctance on the part of advertisers was perhaps due to the fear of legal sanctions. But more likely, advertisers thought comparative advertising was a bad business practice. It would result, they assumed, in free publicity for the competitor, and could trigger sympathy for the company attacked.
The fear of legal sanctions, for the most part, was unfounded. The legal rules allowing such advertising have been on the books for many years. In 1910, the great justice Oliver Wendell Holmes wrote an opinion upholding the right of a seller of mineral water to use a competitor's trademark to tell the public he was selling identical mineral water. In the opinion, Holmes wrote:
They have the right to tell the public what they are doing, ... if they do not convey but, on the contrary, exclude, the notion that they are selling the plaintiff's goods, it is a strong proposition that when the article has a well-known name, they have a right to explain by that name what they imitate.
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an MLM/DIRECT SALES Consulting standpoint by an MLM/DIRECT SALES Consultant
and MLM/DIRECT SALES Legal and MLM/DIRECT SALES Law professional and
programmed by a MLM/DIRECT SALES Software and MLM/DIRECT SALES Technology
provider.