Book contents
- The Cambridge Handbook of International and Comparative Trademark Law
- The Cambridge Handbook of International and Comparative Trademark Law
- Copyright page
- Contents
- Editors and Contributors
- Foreword
- Preface
- Part One International Aspects of Trademark Protection
- Part Two Comparative Perspectives on Trademark Protection
- I The Nature and Functions of Trademarks
- II Signs That Can Be Protected as Trademarks
- III Public Policy Limitations of Trademark Subject Matter
- IV The Relationship between Trademarks and Geographical Indications
- V Certification and Collective Marks
- VI The Relationship between Trademark Law and Advertising Law
- 19 Trademark Law and Advertising Law in the European Union: Conflicts and Convergence
- 20 The False Advertising/Trademark Law Interface at Common Law
- VII The Relationship between Trademark Law and the Right of Publicity
- VIII Trademarks and Domain Names
- IX Overlapping Rights
- X Theories Underlying the Standards for Trademark Infringement
- XI Trademark Dilution
- XII Secondary Trademark Liability
- XIII Trademark Defenses
- XIV The Principle of Exhaustion of Trademark Rights
- XV Trademark Transactions
- Index
20 - The False Advertising/Trademark Law Interface at Common Law
from VI - The Relationship between Trademark Law and Advertising Law
Published online by Cambridge University Press: 18 September 2020
- The Cambridge Handbook of International and Comparative Trademark Law
- The Cambridge Handbook of International and Comparative Trademark Law
- Copyright page
- Contents
- Editors and Contributors
- Foreword
- Preface
- Part One International Aspects of Trademark Protection
- Part Two Comparative Perspectives on Trademark Protection
- I The Nature and Functions of Trademarks
- II Signs That Can Be Protected as Trademarks
- III Public Policy Limitations of Trademark Subject Matter
- IV The Relationship between Trademarks and Geographical Indications
- V Certification and Collective Marks
- VI The Relationship between Trademark Law and Advertising Law
- 19 Trademark Law and Advertising Law in the European Union: Conflicts and Convergence
- 20 The False Advertising/Trademark Law Interface at Common Law
- VII The Relationship between Trademark Law and the Right of Publicity
- VIII Trademarks and Domain Names
- IX Overlapping Rights
- X Theories Underlying the Standards for Trademark Infringement
- XI Trademark Dilution
- XII Secondary Trademark Liability
- XIII Trademark Defenses
- XIV The Principle of Exhaustion of Trademark Rights
- XV Trademark Transactions
- Index
Summary
Both trademark infringement and false advertising are understandable as species of unfair competition, related in that both operate to protect consumers and competitors against distortion in the market caused by misleading information. But they have differing subject matter and often different tests for liability for the same type of claim. In particular, advertisers often want to make comparative claims identifying a particular competitor, whether by name or by some other recognizable characteristic. If these claims are false, no separate principle of trademark law is required to conclude that they should be banned, even if they are neither confusing in the trademark sense nor disparaging. For example, if ads falsely claim the advertiser’s product is as good on some specific measure as the trademark owner’s product while clearly indicating the separate source, false advertising law prohibits the claim. However, if claims such as “cheaper than Brand X, but just as effective” are not false or misleading, then general advertising law allows them – unless trademark law has some separate force in controlling advertising claims that aren’t about the source or sponsorship of the advertiser’s product.
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- Publisher: Cambridge University PressPrint publication year: 2020