Dr. LIU Donghua



时间:2018-11-03 10:41来源:admin 作者:刘东华博士 点击:

A 美国FTC规定
Statement of Policy Regarding Comparative Advertising(DATE: August 13, 1979)
(a) Introduction:The Commission's staff has conducted an investigation of industry trade associations and the advertising media regarding their comparative advertising policies. In the course of this investigation, numerous industry codes, statements of policy, interpretations and standards were examined. Many of the industry codes and standards contain language that could be interpreted as discouraging the use of comparative advertising. This Policy Statement enunciates the Commission's position that industry self-regulation should not restrain the use by advertisers of truthful comparative advertising.
(b) Policy Statement:The Federal Trade Commission has determined that it would be of benefit to advertisers, advertising agencies, broadcasters, and self-regulation entities to restate its current policy concerning comparative advertising.* Commission policy in the area of comparative advertising encourages the naming of, or reference to competitors, but requires clarity, and, if necessary, disclosure to avoid deception of the consumer. Additionally, the use of truthful comparative advertising should not be restrained by broadcasters or self-regulation entities.
(c) The Commission has supported the use of brand comparisons where the bases of comparison are clearly identified. Comparative advertising, when truthful and non-deceptive, is a source of important information to consumers and assists them in making rational purchase decisions. Comparative advertising encourages product improvement and innovation, and can lead to lower prices in the marketplace. For these reasons, the Commission will continue to scrutinize carefully restraints upon its use.
(1) Disparagement: Some industry codes which prohibit practices such as "disparagement," "disparagement of competitors," "improper disparagement," "unfairly attacking," "discrediting," may operate as a restriction on comparative advertising. The Commission has previously held that disparaging advertising is permissible so long as it is truthful and not deceptive. In Carter Products, Inc., 60 F.T.C. 782 modified [1963 trade cases ¶ 70,902], 323 F.2d 523 (5th Cir. 1963), the Commission narrowed an order recommended by the hearing examiner which would have prohibited respondents from disparaging competing products through the use of false or misleading pictures, depictions, or demonstrations, "or otherwise" disparaging such products. In explaining why it eliminated "or otherwise" from the final order, the Commission observed that the phrase would have prevented:
respondents from making truthful and nondeceptive statements that a product has certain desirable properties or qualities which a competing product or products do not possess. Such a comparison may have the effect of disparaging the competing product, but we know of no rule of law which prevents a seller from honestly informing the public of the advantages of its products as opposed to those of competing products. 60 F.T.C. at 796.
Industry codes which restrain comparative advertising in this manner are subject to challenge by the Federal Trade Commission.
(2) Substantiation: On occasion, a higher standard of substantiation by advertisers using comparative advertising has been required by self-regulation entities. The Commission evaluates comparative advertising in the same manner as it evaluates all other advertising techniques. The ultimate question is whether or not the advertising has a tendency or capacity to be false or deceptive. This is a factual issue to be determined on a case-by-case basis. However, industry codes and interpretations that impose a higher standard of substantiation for comparative claims than for unilateral claims are inappropriate and should be revised.
Note*. For purposes of this Policy Statement, comparative advertising is defined as advertising that compares alternative brands on objectively measurable attributes or price, and identifies the alternative brand by name, illustration or other distinctive information.

B: 美国广告代理商协会AAAA的规定:
美国广告代理商协会(American Association of Advertising Agencies)源于1917年的美国圣路易斯,是全世界最早的广告代理商协会。
1. The intent and connotation the ad should be to inform and never to discredit or unfaifty attack competitors, competing products or services.
2. When a competitive productis named, it should be one that exists in the marketplace as signifiCant competition.
3. The competition should be fairly and properly  identified but never in a marner or tone of voice that degrades the competitive product or servtce.
4. The advertising should compare related or similar properties or ingredients of lhe product, dimension to dimension, feature to feature.
5. The identiftcation should be for honest comparison purposes and not simply to upgrade by association.
6. If a competitive test is conducted, it should be done by an objective testing service.
7. In all cases, the test should be supportive of all claims made in lhe advertising that are based on the test.
8. The advertising should never use partial results or stress insignificant differences to cause the consumer to draw an improper conclusion.
9. The property being compared should be significant in terms of value or usefulless of the product to the consumer.
10. Comparisons delivered through the use of testimonials should not imply that the testimonial is more than one individual's, unless that individual represents a sample Gftfle majority viewpoint.

C: 美国判例

1. 美国1910年的Saxlehner v.Wagner案。美国最高法院在该案中允许被告销售矿泉水时使用原告的商标,以告诉消费者他的水与原告的水并无二致。See Saxlehner v.wagner,216 US375,30 S Ct 298,54LEd 525(1910)。该案是目前知道的最早的比较广告判例。

2. 美国第三巡回上诉法院审理的Castrol,Inc.v.Pennzoil Co案,阐述了比较广告的认定。