Comparative advertising has become widely used in recent decades – for example, in the United States. However, it was rarely used in Argentina due to the uncertainty and risk that it entailed, as the country lacked specific regulations in that regard.
Different rules have been applied to comparative advertising, such as unfair competition provisions (Section 159 of the Criminal Code and Section 10-bis of the Paris Convention) and trademark-related rules (Article 4(1) of the Trademark Law (22,362) establishes that "the ownership of a trademark and its exclusive use are obtained by means of its registration").
Controversy arises from the fact that the Trademark Law reserves exclusive use to the trademark owner, whereas any party that carries out comparative advertising is using a third party's trademark.
Legal commentators have discussed whether this constitutes use in trademark terms and is therefore prohibited by law.
The approval of the new Civil and Commercial Code (for further details please see "New Civil and Commercial Code and industrial property rights") means that comparative advertising is now also regulated from a consumer law perspective.
Section 1101 of the code establishes which types of advertising are prohibited and Section 1101(B) refers specifically to when comparative advertising is forbidden:
"Advertising shall be banned if:
a) it contains false indications or indications of a nature such that they lead or might lead the consumer to error, when they refer to essential elements of the product or service;
b) it makes comparisons between goods or services, when the nature of said comparisons is such that they lead the consumer to error;
c) it is abusive, discriminatory or promotes harmful or dangerous behaviour which presents a threat to the health or safety of the consumer."
Section 1101(B) prohibits comparative advertising that leads the consumer into error (eg, comparative advertising based on elements or parameters that lack objectivity).
The potential ban on comparative advertising that leads to error is intended to protect consumers, as it is implemented in the frame of the regulation of consumption agreements; thus, other principles or regulations will apply to disputes that comparative advertising might cause to arise between competitors.
For further information on this topic please contact Daniel R Zuccherino at Obligado & Cia by telephone (+54 11 4114 1100) or email ([email protected]). The Obligado & Cia website can be accessed at www.obligado.com.
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