A High Court judge has given the all clear for comparative advertising
in Britain to continue as long as it is not deliberately unfair.
The ruling is likely to be welcomed by agencies that have been
responsible for the surge in comparative ads since the 1994 Trade Marks
Act eased the restrictions.
Until now comparative advertising has been hampered by the vague wording
of the 1994 act, which said it was acceptable as long as it conformed
with ‘honest practices in industrial and commercial matters’.
Now Mr Justice Laddie has clarified the law by throwing out an
injunction application by Barclays against RBS Advanta - a joint venture
between the Royal Bank of Scotland and Advanta Corporation - over
comparisons with Barclaycard in a direct marketing promotion for a new
Visa credit card.
The judge ruled that the ads fully conformed to the wording of the act
and that there had been no infringement of the Barclaycard trademark.
Although some members of the Incorporated Society of British Advertisers
are opposed to comparative advertising because of the potential damage
it could cause to well-established brands, the court ruling has been
welcomed by the Institute of Practitioners in Advertising.
Philip Circus, the IPA’s legal affairs director, said: ‘We’ve always
said that freedom of creative techniques is at the forefront of the
fight for freedom of commercial speech. The trouble was that although
the Government introduced the 1994 act to allow comparative advertising,
its woolly wording meant we didn’t know what was allowed and what
wasn’t. Now we do.’
The mailing sent out to promote the card listed 15 benefits to potential
users and compared it with other cards, including Barclaycard. The
bank’s action was the first of its kind since the act relaxed
The court ruling means that advertisers can continue to use competitors’
trade marks for identification purposes without falling foul of the law.