The Study Of Standards In False Comparative Advertising

With the development of the economy, the amount of enterprises and brands increases day and night. Consumers usually have a plenty of choices when they buy products or service. Therefore, how to catch consumers’ attention has been enterprises’ top topic. Advertising is always a great business channel for enterprises to publicize their product and services as well as themselves. Compared with other type of advertisement, comparative advertisement is a better way to emphasize the advertiser’s strengths, witch lead more and more enterprises to adopt this type of ads. However, most of china’s ads laws and regulations were enacted last century. Therefore, they are somehow outdated when deal with the new unfair comparative advertising. The thesis aims to discuss the standards of false comparative advertisement from the view of unfair competition law. The thesis begins with the question that china lacks the standards to judge whether an ads belongs to false comparative advertising or not. After clarifying the definition of false comparative advertisement, the thesis focuses on discussing the two core elements of false comparative advertisement. By separating the false comparative advertisement into two types which are literally false comparative advertisement and misleading comparative advertisement, the thesis analyzes different cases’ opinions home and overseas to conclude a concrete standard of false comparative advertisement.The thesis consists four parts:Part I simply illustrates the problems existing in china to judge a false comparative advertisement. Firstly, the premise of a false comparative advertisement is to be a comparative advertisement, while China doesn’t explicitly states the legal definition of comparative advertisement in the laws and regulations. Therefore, the element of comparison is rarely discussed in cases, and moreover, judges from the first trial court and the appeal court have opposite opinions regarding the same case. Secondly, in terms of false comparative ads cases, the courts usually adopt Article 9 of the unfair competition law to judge. However, the expression of the “false” in the law is so ambiguous that from the literal meaning of the rule,there are two words specifying this kind of advertisement which are misleading and false. Scholars have different understandings considering whether “false” and “misleading” should be together taken into account or not when judging a false comparative advertisement. The false advertisement should be understood as false or misleading advertisement. Part I also states that the reason of false advertising disputes have become a major problem for the judges in China is because China has not yet established specific standards for false comparative advertising.Part II discusses the criteria of comparative advertising. Comparative advertising is the premise of false comparative advertisement. Since China has yet established the legal definition of comparative advertisement, the thesis defines comparative advertisement after comparing the different countries’ and regions’ legal definitions of comparative advertisement such as US Europe and Taiwan. Comparative advertising is a neutral concept which concludes as whichever mentions the competitor’s goods or services explicitly or by implication. Specifically, the ways of comparison can either by speaking out the competitor’s name or his products as well as services or by implying competitor which will be associated with from the relevant consumers’ point of view. The compared enterprise should be in the same industry of the advertiser. In other words, the advertiser shall have competitive relationship with the compared one, e.g. Vanke doesn’t have competitor relationship with LV. And one more thing, the ads’ content shall be comparable, which is to say the compared products and services shall be the same or equivalent or can achieve the same purpose. Furthermore, there are three types of unfair comparative advertising.Part III discusses the criteria of “false” in false comparative advertisement. The thesis clarifies false comparative advertisement into two types which named as literally false comparative ads and misleading comparative ads according to US. Literally false means that the claim itself is false while misleading ads means that the claim is true literally but it will lead to consumers’ confusion. We shall take two steps to determine whether an advertisement belongs to false comparative advertisement or not. Firstly, we shall judge whether the ads in case is literally false or not. There are three rules to determine literally false, namely necessary implication principle, test approve principle and consumers’ reaction. To judge whether the claim is misleading or not, the following elements should be taken into account: 1. the relevant advertisement’s audience; 2.common notice standards; 3.overall observation principle; 4.isolated observation principle.Part Ⅳcomments the provisions concerning the false comparative advertisement and suggests to lie down the concrete standards of false comparative advertisement in the interpretation of the unfair completion law. Meeting the revision of the advertisement law, some legal suggestions are given to modify and improve the related provisions in advertisement law.