Comparative Advertising and The Lanham Act (Part 1)

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      Khalid Farwana
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      The Lanham Act was enforced in 1946 under title 15 of the United States code under Application for Registration Chapter 22. Chapter 22 covers trademarks in general. To use a trademark, one needs to apply for it to practice in trading and commerce. Trademark infringement, dilution, and false advertising are all protected under this act. Former President Harry Truman signed off and passed the act on July 5, 1946. In 1984, it was revised and amended to include that anyone who uses a false trademark would be committing an official offense. The Lanham act currently governs all forms of the United States trademark Law. Comparative Advertising, in relation, created a form of false advertising that emerged under the government of this legislature and must be mentioned due to its significance and current use in the marketing world. Comparative advertising is a concept based on a technique by which a product or service is compared to a competing good or service with the intent of proving its superiority and attracting and retaining customers in the process. Comparative advertising differs from the more traditional and well-known form of advertising which focuses on promoting sales of a product or service through the basis of their qualities or advantages (Romano 371). In most cases, the use of comparative advertising resulted into conflicts among businesses as the concept allows competitors to use their rivals’ names and brands when making a comparison of prices and values goods and services. The Federal Trade Commission (FTC) endorsed the use of comparative advertising in 1971 under the understanding that the comparison of product and service advantages would enable consumers to become more sophisticated and end up making a more rational purchasing decision. Additionally, allowing the use of comparative advertising was meant to result in product and service improvement and innovation as well as a decrease in prices. However, it was later noted that the extensive use of comparative advertising leads to numerous advertising abuses. For example, the use of comparative advertising led to false claims, product criticism, and false representation or misleading advertisements (Radis 369). The failure by the FTC to conduct comparative advertising as a regulatory scheme, led to the rise in importance of judicial remedies for comparative advertising abuses in business. The Lanham Trademark Act, specifically section 43(a), was a regulatory scheme and judicial remedy that was passed due to the inadequacy of the FTC, as well as a focus on making one civilly liable to another who is or is likely to be damaged by the false description or representation of the products and services being sold. The discussion below will focus on explaining the implementation of the Lanham Trademark Act, how businesses comply with the regulatory scheme, pitfalls to avoid, and my opinion regarding its effectiveness in refining the abuses of using comparative advertising.

      Advertising rules and regulations in the United States focus on controlling what businesses can and cannot include in their advertisements, particularly false advertising as associated with comparative advertising permitted by the FTC in 1971. In most cases, advertising rules and regulations focus on making sure that businesses reveal the truth in their advertisements as well as holding deceptive advertising practices and unfair advertising which also includes trademark infringement, accountable. Advertising laws and regulations are enforced by the FTC while each state designs and implements its laws with respect to the FTC (Romano 400). The Lanham Act aids business competitors to privately bring lawsuits to marketers for false advertising when a business makes unsubstantiated claims regarding the qualities of its products or services as compared to those of a competitor. Businesses comply with the Lanham Act regulatory scheme through ensuring that their advertisements make factual claims and do not deceive the target audience; otherwise the competitor is likely to be harmed by the deception.

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