| Opis: | The paper deals with a special type of advertising, i.e. comparative advertising, in which a company
compares its goods or services with the goods or services of a competing company and, as a rule,
emphasizes the advantages of its goods or services. At the EU level, this type of advertising is subject
to full harmonization, which does not allow deviations in the national regulations of the Member States
of the EU. The Slovenian legislator regulated the rules of comparative advertising in the Consumer
Protection Act. The paper explains the concept of comparative advertising by distinguishing it from
some other types of advertising and the circumstances of its admissibility, such as comparison of one's
own goods, abstract comparisons, system comparisons, comparisons with tests and certificates,
comparisons made by third parties and comparisons made by advertiser himself, plural advertising and
superlative advertising.
Comparative advertising is neither absolutely permissible nor absolutely prohibited. The legality of this
advertising is tied to conditions that enable it to comply with fair market practice. Based on this, the
paper analyses the conditions of admissibility of comparative advertising, with which the EU legislator
wants to harmonize the interests of all persons to whom comparative advertising applies (owners of
intellectual property rights, advertisers, their competitors and consumers). In accordance with the
practice of the Court of Justice of the EU, the conditions of admissibility of comparative advertising
must be interpreted in favour of comparative advertising or the advertiser.
In order for comparative advertising to be permissible, it must meet the following conditions: it must
not be misleading; must compare goods, services or digital content meeting the same needs or intended
for the same purpose; must objectively compare one or more material, verifiable and representative
features of such good, service or digital content, including price; must not create confusion on the
market between advertisers and competitors or between brands or service marks, trade names, other
distinguishing marks, goods, services or digital content of the advertiser and competitors; may not
discredit or denigrate the trademarks, trade names, other distinguishing marks, services, activities or
circumstances of a competitor; in the case of goods with designation of origin, it must relate in each
case to products with the same designation; it must not take unfair advantage of the reputation of the
trademark, trade name or other distinguishing marks of a competitor or of the designation of origin of
competing goods; may not present goods, services or digital content as imitations or replicas of goods,
services or digital content bearing a protected trademark or trade name.
Comparative advertising that does not comply with the prescribed conditions is inadmissible, for which
appropriate sanctions are foreseen. Sanctions are provided not only by the Consumer Protection Act,
in which the conditions for admissibility are determined, but also by other regulations. It should be
borne in mind that comparative advertising is not only intended for consumers, but can primarily affect
the interests of competitors. As a result, it affects the interests of both mentioned categories of persons.
Therefore, the sanctions provided for in the Act on the Prevention of Restriction of Competition are
also applied. The sanctions prescribed in this law are applied only in the case when a competitor refers
to impermissible comparative advertising. At the same time, it must be taken into account that the
advertisement often contains a sign that is a registered trademark of a competitor, which consequently
means the use of a trademark for which the advertiser does not have the permission of the trademark
holder. In the event that comparative advertising does not comply with the conditions specified in the
Consumer Protection Act, the use of such a trademark also constitutes a violation of the trademark,
and the owner of the trademark may assert claims under the Industrial Property Act. |
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