Trademarks Infringement and Comparative Advertising: The Desired Balance

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Comparative Advertising is one of the fields that is affected by trademark law. For example, in the United States, there are the famous battles between McDonald’s and Burger King. These battles include parodies where one party makes fun of the other as being inferior for some reason. Aadvertisers thus sometimes compare their marks to a famous trademark, conveying information through comparisons and trying to attract consumers to become their clients. Consumers on the other hand benefit from these comparisons and the information they provide. However, due to the wide expansion of trademark law after L’Oreal, it appears that competitors as advertisers might be suppressed from using comparative advertising, preventing the flow of information that consumers might rely on. The judgement has extended the protection of trademarks to cover additional functions other than the essential indicia of origin and economic functions. These modern functions include the investment, communication, and advertising functions. Having said that, a balance should be sought between the interests of trade mark owner in protecting his mark from detrimental uses and other parties’ interests in the flow of information and freedom of competition in the context of comparative advertising. This thesis will critically examine whether the current position of the United Kingdom’s trademark law fairly recognize the importance of comparative advertising and properly balance these interests. After this introduction, the thesis has been organized in four sections. It begins by addressing the definition of comparative advertising, its relation to trade marks, and the importance of it as an advertising mechanism. The second section will go on to discuss the infringement criteria of trade marks with reference to comparative advertising cases. Section three will reconsider the justifications of trade mark protection in order to specify where the limit should be drawn on trade mark protection. It will be suggested where the current law has failed in striking the desired balance between the aforementioned interests. Finally, a conclusion will be drawn. Discussion will depend on relevant journal articles, such as: European Intellectual Property Review; Intellectual Property Quarterly; and Journal of Intellectual Property Law and Practice; in addition to relevant case reports; and legislations.

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