Plans to introduce a harmonised regulatory framework allowing comparative advertising across Europe still have some way to go before they become a reality. But the latest compromise proposals to emerge from Brussels suggest a solution that may satisfy.
Broadly, the current text, which incorporates some of the European Parliament’s amendments, goes further towards the provision of increased protection both for consumers and competitors from misleading forms of comparative advertising.
More specifically, the new draft, published at the end of June, acknowledges a need to prevent “unscrupulous competitors” from attempting any communications activity which may be detrimental to goods and services with an established reputation. To achieve this aim the amendment prohibits comparative ads where imitations or replicas of products with protected trademarks are concerned.
This may seem a small adjustment, but it could well be more significant than it first appears.
While there are continuing signs of renewed advertiser faith in supporting and maintaining powerful brands, competitive pressure from own-label and me-too products shows no sign of abating. It has been a difficult and often sensitive task for brand builders to fight back against such an enemy.
Recently, however, brand marketers have been more aggressive in their use of the courts to fight copyright infringement. They have begun to enjoy some level of redress, where the brand values they have established over time are usurped by products which clearly reflect their packaging style but sell at a lower price.
In a similar way, the European Commission’s proposals acknowledge the valuable role of the legitimate brand builder in developing new products and services to meet consumer demand. They also reinforce the right to communicate brand information unhampered by misleading commercial messages from competitors riding on their coat-tails.
When the regional Com parative Advertising regulations finally come into effect it is likely that they will not be applied uniformly.
Under subsidiary rules countries including Germany, which are opposed to any form of comparative advertising, will no doubt fight hard to maintain their current entrenched position.
It would, however, be unfortunate if opposition to a loosening of current restrictions ignores the efforts being made by Brussels to protect the interests of both the consumer and the legitimate brand builder.