The Comparative Advertising And The Regulation Of Competition Law

This thesis primarily studies the basic theoretical problems and the perfection of the legal regulation of the comparative advertising in china, and totally is divided into three parts.The first part is about the basic theoretical problems of the comparative advertising. The thesis is engaged in the semantic analysis of the comparative advertising, through various countries being to the different ideases of comparitive advertising compare with and analyse, have the two main nature of the comparative advertising. The comparative advertising have certain legal validity, and should not confine to the illegal category at first.. Secondly, the comparative advertising possesses comparability. It compared goods or services meeting the same needs or intended for the same purpose. The success of the comparative advertising lies in the fact that the comparative effect occurs, which depends on the detailed comparison of different products or the trust degree of consumer in products. By the analysis of comparative effect and comparability, the comparative advertising in doctrine is defined as follows: the advertising from commodity producer and service supplier can take the exclusive effect by comparing directly or indirectly own products and services with other's in the same competition field, so such comparison could distinguish other competitor or material characteristic of commodity. As one of advertising types, the comparative advertising is ubiquitous in economy and is divided into the following six sorts: The first is objective comparative advertising and subjective comparative advertising, according as whether it possesses subjectivity. Based on comparative contents, the second is comparative advertising of price and attributive comparative advertising. The third is direct comparative advertising and indirect comparative advertising according to competitor mentioned or not. The fourth is amplectant comparative advertising and critical comparative advertising, based on the different attitude of competitor. The fifth is comparative advertising of commodity and service comparative advertising in the light of the concrete object of comparison. The last is systemic advertising, inquiring advertising, refutatory advertising and new technical advertising by the initiative or passivity of producer.The second part of this thesis focuses on the legal validity and criterion for judgement of the comparative advertising. By comparing behaviour in the comparative advertising, the consumers have some chances to know and choose commodities more possibly, at the same time, the producers know about the deficiency of products as well. In free economy, the comparative advertising is allowed in principle. But the comparative advertising touches upon the prestige of compared competitor and the ability to compete in market, moreover, it will induces the losing of the trustful degree of advertising for the consumers. So the advertising must keep to the following general principles of law about the control principles of the comparative advertising: The comparison must be objective as much as possible and avoid using the statements which are incapable checked and found to be true, the subjective expression and personal abuse. Then, the comparison should be fair, namely it should follow the accordant norm and principle in the same or similar products. The comparative advertising of special commodities directly related to health must be forbidden, such as pharmaceutical, pesticide and medical instruments. The comparative advertising of some commodities, such as tobacco, food, drink and cosmetics, could be allowed but in strict limits. According to the content of advertising, the competent apartment should estimate whether the comparative advertising accords with true, fair and objective principle, and show the enough correlative proof to support judgements. If the advertising disobeys these principles as mentioned above, the competent apartment will ban it. The comparative advertising, bringing on unfair competition, can be...