Comparative Advertising: What is allowed and what is not?

Comparative advertising is a means of convincing consumers of the advantages of your product or service over competitors. But where is the line between permissible and impermissible comparisons? In this blog article, I explain what constitutes comparative advertising and the rules it must comply with.

What is comparative advertising?

Comparative advertising is “any form of advertising that explicitly or implicitly mentions a competitor, or the goods or services offered by that competitor.” This means that comparative advertising is readily available even if the competitor’s name or the name of the competitor’s product is not literally mentioned.

Thus, an advertisement touting, for example, a product as “better than the market leader” may still qualify as comparative advertising if it causes consumers to immediately think of a specific brand or company.

In addition, there are advertisements that attribute certain properties to products or services, such as “the shiniest result.” Such general and promotional claims are seen as typical advertising exaggeration and, in principle, are not unlawful.

However, for claims of an objectively verifiable nature, this is different. For example, a claim such as “tested as tastiest” is considered (implicit) comparative advertising because it suggests that different products have been objectively compared and evaluated. In such cases, the advertiser must be able to substantiate that this comparison has actually taken place.

When is comparative advertising permitted?

Comparative advertising is permitted in the Netherlands as long as it meets a number of conditions.

1. Not misleading. This may seem obvious, but a comparative advertisement must not contain false or misleading claims. In addition, essential information may not be omitted if it would mislead the consumer or paint a false picture of the product or service.

2. Similar products or services. The products or services compared in the advertisement must meet the same need or be for the same purpose. However, it does not have to be the exact same product, as long as the products have similar functionality and a consumer could consider them alternatives.

3. Objective and verifiable. Comparative advertising must be based on objective, relevant and verifiable characteristics. These may include factors such as price, durability, reliability or functionality. The claims made in the advertisement must be provable and verifiable so that consumers can verify their accuracy.

4. Do not cause confusion. Advertising must not be presented in a way that confuses consumers about who the sender of the advertisement is or what product is being offered. This means that advertising must not create confusion about the origin, brand identity or characteristics of a product or service.

5. Do not harm the competitor. Comparative advertising may not be intended to harm a competitor. This means that negative, disparaging or insulting statements about a competitor are not allowed. The comparison must remain objective and factual and must not be used to undermine a competitor’s reputation.

6. No unfair advantage. The use of a competitor’s trademark or trade name must not confer an unfair advantage. However, effective comparative advertising may require its mention. As long as the conditions of Section 6:194a of the Civil Code are met, this is permitted without prior permission. Nevertheless, such mention may violate trademark law if it causes confusion or unfair competition. This happens, for example, when the competitor’s trademark is displayed so prominently that the compared product dominates the advertisement. This allows the advertiser to take unjustified advantage of the competitor’s reputation, which may damage the distinctiveness or reputation of the trademark and thus violate trademark law.

7. Do not promote imitation or counterfeiting. It is not permitted to present products or services as imitations or copies of a competitor.

Questions?

Do you have questions as a result of this article or other questions regarding (comparative) advertising? Please contact one of our attorneys by email, phone or fill out the contact form for a no-obligation initial consultation. We are happy to think along with you.