Law of Trade Marks and Brand Names - Essay Example

ng (1) it is justifiable based on the premise of customer welfare and informed decision of consumers (2) it is not justifiable since it creates unfair competition. Before 1994, a number of English laws have been restricting but never prohibiting comparative advertising. For instances, under section 4(1) (b) of the Trade Marks Act 1938, it is considered an infringement of trademark if a third party uses the trademark of another in its advertising regardless of the nature of such advertisement.

However, this all changed when Trade Marks Act (TMA) 1994 was enacted, English law then took a firm stand on comparative advertising. Following the provisions of s 10(6) of the TMA, comparative advertising is now permitted. Section 10(6) of the TMA has been interpreted as to allow comparative advertising “as long as the use of the competitor’s mark is “honest”.2 In the words of Laddie J is the case of Barclays Bank v RBS Advanta (1996) 3, “there is nothing wrong with telling the public of the relative merits of competition goods and services and using registered trademarks to identify them.

” In most cases brought before the Courts, the question has been on the issue of justifiability of unfavourable comparisons employed by competitors. Would unfavourable comparisons be a kind of breach to the benchmarks of honesty as indicated in Section 10(6) will result to infringement of trademarks? “If the use is considered honest by members of a reasonable audience, it will not infringe”.4 In the Court’s decision in the case of British Airways Plc V Ryaniar Limited, Jacob J said that people are already very much exposed to advertising and already know better that believe everything that is being said in advertisements.

“They expect hyperbole and puff.5” The fact that “the advertising pokes fun”6 at the competitor’s goods and services with great emphasis on the benefits offered by the advertiser is not enough to warrant infringement as this considered normal