Comparative Advertising Law Research

As one kind of operating model of commercial advertisement, comparative ad appears universally. Due to adopting of the method of comparison, the objective character which decides the coexistent of the advantages and disadvantages, will lead more disputes. Therefore, it is particular necessary to make a research on the legal issues arising from comparative ad for preparing future legislation. It's also the issues the author will discuss.Part one of this thesis discusses the basic legal issues of comparative ad. This part comprises four sections.The summarization of comparative ad. Firstly, introduces the defines and the class of ad; Then, analyses the essence character of commerce ad and the defines of comparative ad, on this condition, indicates that the comparative ad belongs to commerce ad; Finally, discusses the development and the characters of the comparative ad in our country.The feasibility of comparative ad. The comparative ad contains comparisons, the ad maker compare the product with their competitors or compare themselves with the competitors to standing out. It's a new type ad developed with commercial activities. Its feasibility lies in the effects of overcoming the information dissymmetry between the proprietor and the consumer in the market economy.The validity important document of comparative ad. (1) The comparison possibility. This part states two implications: one is the two sides having commercial attributes and aiming at the same group of consumers with the products in the same category in the market are competitive; another is the definite aspect existing. ( 2 ) The matter must be impersonality and reality. Firstly, the misstatement which would be misapprehensive is not allowed; Secondly, there must have enough proofs to sustain the comparative parts. ( 3) The languages must be nicety and criterion. This part discusses the use of super degree adj, and with the view of maintaining the authenticity of ad and protecting the development of economy, the use of super degree adj. in comparative ad should be prohibited. ( 4) The condition must be equity and logical.Scope of application. This part points out that comparative ad does not beenused in medical products (including medicines and chemical reagents, medical treatment appliance and medical treatment services) . The reason is it could be complex course of the effects on the patient and could hardly compare the efficacy and safety. What's more, the public could not make accurate judgment on medical products easily. Therefore, comparative ad should be prohibited using in medical products for protecting people's health.Part two of this thesis discusses the practice of the comparative ad. This part comprises three sections.The overlaps of false propaganda and commercial slander in comparative ad. Firstly, concemes about the purpose and characteristic of the false propaganda and commercial slander; Then, deals with the conditions of the overlaps; Finally, to show the meanings of making clear of the relationship of overlaps : it will do good to regulating comparative ad and strengthening executing the law.The conflicts and coordination between the freedom of speech and fame right in comparative ad. This part discusses the implication and being protective scope and the protection should covering the comparative ad. while the right of reputation means the obligee having the rights far from being aggrieved. In comparative ad, there has the problem of how to conciliate the conflicting rights. The author put forward related disposal of rights on the principle of balance.Comparative ad and trademark tort. This part discusses the question of whether trademark tort is confirmed when others registered trade mark appearing in comparative ad. Then put out the comparative ad includes clambering type and criticized type, and the premise followed when others registered trademark appearing in the two types. For the former, the agreement of the obligee of trade mark should obtained as well as the coincidence of product quality and description is gua...