A Study On Comparative Advertising Ruled By Law

It's possible for consumer not to know well with comparative advertising in China. But the comparative advertising has been a general practice in most western developed countries. There exists controversy on the concept of comparative advertising. The definition in 97/55/EC Directive is more rational, adaptable and acceptable at present.It is still disagreement on legal issue of comparative advertising among research and practical circles, and the main opinions are opposite theory, support theory, and restriction theory. Tallied with the rule of equal, free and full competition, the theory of restriction possesses strong basement of law science. So permitting comparative advertising reflects the modern idea and spirit of rule of law.The countries belonging to Anglo-American law are permissive and tolerant to comparative advertising, and Trade Mark Law is the major in legislation. On the other hand, Civil Law countries generally are against and prohibit comparative advertising. The 97/55/EC Comparative Advertising Directive is the result of long term confliction and outcome of mutual concession between the two laws systems. The 97/55/EC Directive has direct efforts to each country in Europe Union. Consequently, the member in Europe Union, whether Anglo-American law or Civil law countries, the developing trend of their comparative advertising are closing to their mutual compromise criterion- 97/55/EC Comparative Advertising Directive.Confirming legitimate comparative advertising should accord to principle of good faith and honest, principle of objective and true, principle of proper comparison, and principle of benefit to consumer. Moreover, the key to illegal comparative advertising is in line with whether misleading or defaming others or not. At present, the Callmann principle is more acceptable to judge misleading comparative advertising.Protecting proper comparative advertising and remedying the tort of illegal comparative advertising mainly resort to public rights, such as administrative intervention or law suit, and private rights, such as negotiation, conciliation, and ADR mechanism. The Europe Union encourage utilize ADR mechanism in the law relationship of comparative advertising by setting advocate norms of law. The practice of America and Europe Union prove that the ADR mechanism is more workable and effective than the methods of administrative intervention or law suit.There are lacking of legal norms on comparative advertising in high level laws in our country, and some administrative regulations relating to comparative advertising are infeasible actually. In addition, in China, the means to remedy the tort of illegal comparative advertising excessively rely on coercive method, such as administrative intervention or law suit, and neglect the affect of ADR mechanism.Therefore, to perfect the legal norms of comparative advertising in China, firstly, we should permit utilizing comparative advertising obviously in legislation; secondly, we should catch up with the world developing trend, and reform our comparative advertising norms of law and regulations according to our economic requirement; thirdly, we should lay stress on using advocate norms of law and rewarding regulations, especially setting up unofficial self-disciplined organization and ADR mechanism; and finally, we should establish perfect social supervision mechanism.