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Q: Is it legal to name and/or show a competitor's product in advertising? ( Answered 4 out of 5 stars,   1 Comment )
Question  
Subject: Is it legal to name and/or show a competitor's product in advertising?
Category: Business and Money > Advertising and Marketing
Asked by: sfmarq-ga
List Price: $20.00
Posted: 28 May 2005 10:07 PDT
Expires: 27 Jun 2005 10:07 PDT
Question ID: 526675
We are creating an ad campaign for a product which is related (but not
a direct competitor to) an Apple iPod. Can we show and image of an
iPod or use the words Apple iPod in the ad? I realize that you are not
providing legal advice, but I'd like to know generally if this
practice is acceptable. This is a national print advertising campaign
and the ads are not designed to compare the product to an iPod but
simply to indicate that it is a related technology.
Answer  
Subject: Re: Is it legal to name and/or show a competitor's product in advertising?
Answered By: jackburton-ga on 28 May 2005 11:38 PDT
Rated:4 out of 5 stars
 
sfmarq,
 
My researching indicates that this practice is acceptable under US
law, provided the trademarked product is accurately depicted, and that
any claims associated with it can be substantiated.
   
  
From an article on the FindLaw website:
  
"Use And Misuse
  
Under U.S. law, use of a competitor's trademark in accurate and
non-deceptive comparative advertising is legal and does not constitute
trademark infringement. In fact, truthful comparative advertisements
? even those that display a competitor's trademark, are considered to
be informational for consumers and beneficial to competition, provided
that the competitor's mark is accurately depicted. Legally permissible
comparative advertising must unequivocally convey that the
competitor's products or services sold under its mark(s) are
independent from yours, and your advertising reference to a
competitor's trademark must neither imply an affiliation nor
explicitly or implicitly endorse your products. When using your
competitor's trademark in advertising, your company should consider
the following:
  
? Always accurately depict your competitor's trademark. Do not alter
it in any form.
? Do not prominently position or otherwise highlight your competitor's
trademark in any manner that implies an affiliation with or
sponsorship by your competitor.
? Where possible, include proper trademark notice ("TM" or "(r)") and
add a footnote stating that the trademark is owned by your competitor.
? Ensure that all claims associated with the use of your competitor's
trademark, such as the content or effects of the trademarked product
or service that your company's advertisement refers to, can be
substantiated."
  
"Ours Works Better": Use Of A Competitor's Trademark In Advertising
http://library.findlaw.com/2004/Dec/14/133668.html
  
-------------------------------------------------------------------
  
  
From the FAQ page of "Cooley Godward LLP":
  
"My product is best showcased when compared to my competitor's
product. Can I run comparative advertising?
  
In the U.S., comparative advertising is permitted, provided that it is
substantiated, truthful and not misleading. For instance, price and
quality comparisons must be recently substantiated before an
advertisement is run, as outdated comparisons may be false or
misleading. It is important not to hold up another's trademark to
ridicule, because that can lead to liability under trademark laws. In
addition, disparagement of another's product or business is trade
libel, and this may lead to a claim for damages.
  
Please note that many other countries prohibit or restrict comparative
advertising. Do not engage in comparative advertising in any country
without first verifying with counsel that it complies with local
laws."
  
Cooley Godward LLP | Advertising FAQ
http://www.cooley.com/practices/content.aspx?id=Advertising_FAQ
  
-------------------------------------------------------------------
 
  
Comparative advertising is encouraged by the Federal Trade Commission
and only restrains advertising that constitutes "unlawful or deceptive
acts or practices in or affecting commerce." You can read the FTC's
Statement of Policy regarding Comparative Advertsing here:

Statement of Policy Regarding Comparative Advertising 
http://www.ftc.gov/bcp/policystmt/ad-compare.htm

-------------------------------------------------------------------
  
  
I also included a recent article that discusses how even law firms are
beginning to name their competitors in their ads:
  
Law Firm Ads No Longer Afraid to Name Names
http://www.law.com/jsp/article.jsp?id=1115111119049
  
-------------------------------------------------------------------
  
  
Search terms used:
advertisement law name competitor product
"competitor's trademark"
 
  
   
I hope this information is useful, and I wish you luck with the ad!

If anything is unclear, please request a clarification.


Best regards,

Jackburton-GA
sfmarq-ga rated this answer:4 out of 5 stars and gave an additional tip of: $3.00

Comments  
Subject: Re: Is it legal to name and/or show a competitor's product in advertising?
From: waukon-ga on 28 May 2005 20:54 PDT
 
Lots of US packaging for generics has 'compare to' right on their
label; look at Wal-Mart's Equate brand. But as the answer indicated,
you have to be careful, which is why anyone in business needs a lawyer
-- unfortunately.

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