IP Tech Knowledgy

Comparative advertisements can mention competitors, so long as the statements are truthful and does not falsely imply a connection between the two entities. There is no prohibition on mentioning another company’s brand, whether as part of a narrative or in a direct comparison.

However, there are a variety of prohibitions against the statement about the competitor being false or misleading, as codified in federal trademark and unfair competition law, Federal Trade Commission (FTC) regulations or state laws and regulations. The issue is what is said about the competitor, not merely using its name.

An advertisement must also avoid stating or implying that there is a connection, affiliation, or sponsorship with the competitor. Whether in statements made, juxtaposition of the brands, or other implications made, the advertisement cannot confuse consumers into believing there is some relationship between the two entities. When an advertisement is careful about truthfulness and the relationship, an advertiser could compare the quality, nature, or other aspects of two products and not run afoul of relevant law. In fact, the FTC regulations encourage naming competitors.

For an older, but still relevant, discussion on the topic, see this article.

Ned T. Himmelrich
410-576-4171 • nhimmelrich@gfrlaw.com