Not Just for Laughs? An Interdisciplinary Analysis of the Tension between Trade Mark Reputation and Humorous Comparative Advertising

Abstract

This thesis examines the legal and normative issues surrounding the use of humour in comparative advertising, where a sponsoring brand ridicules a competitor in order to assert superiority. While humour may enhance the persuasiveness of advertising and mitigate audience resistance, such advertising may also give rise to claims that it causes reputational harm or constitutes unfair free riding on the investments underlying the competitor’s trade mark. Although the Trade Marks Act (‘TMA’) 1994 prohibits acts that cause detriment to, or take unfair advantage of, the reputation of a trade mark, it remains uncertain whether humorous comparative advertising is capable of producing such prohibited effects, whether, if such effects are established, they ought to justify legal prohibition, and how such effects should be judicially assessed. While the courts of England and Wales seek to balance the competing interests of advertisers and trade mark owners, existing doctrinal mechanisms do not provide a systematic or objective framework for doing so, particularly in cases involving claims of reputational harm. Adopting an interdisciplinary methodology that draws upon marketing studies, psychology, legal doctrine, and moral philosophy, this thesis addresses these gaps. It offers a working definition of humorous comparative advertising, analyses the conflicting interests at stake, evaluates the application of the infringement provisions under the TMA 1994, and proposes reforms with the goal of rebalancing the permissibility of such advertising with the protection of trade marks. The analysis results in the development of an original theory of reputational harm in this context, identifying the trivialisation and distraction effects of humour as mechanisms by which such harm may arise. It further proposes a framework for judicial assessment and argues that prohibition is justified where humour associates the trade mark with either false information or unfavourable associations.