June 26, 2013 — It is one of many questions which every successful business must at some point address: Can my competitors compare the relative qualities of my products and services with theirs without infringing on my trademark.
Probably one of the most watched videos that best describes comparative advertising is Microsoft Windows 8’s use of the voice of Siri (Apple’s intelligent personal assistant and knowledge navigator) to allege that the iPad cannot cope with certain tasks which Windows 8 can do effectively. If you haven’t already seen it you should check it out below:
Although there is no specific legislation that governs comparative advertising in Nigeria, some legislation have over the years been interpreted as indicating that the use of a company’s registered trademark in comparative advertising could constitute trademark infringement in Nigeria. For example, the Nigerian Communications Commission Guidelines on Advertisements and Promotions provides that advertisements must not unfairly discredit, disparage or attack other products, services, advertisements or companies, or exaggerate the nature or importance of competitive differences. Companies and individuals are also not allowed to imitate the slogans or illustrations of another advertiser in such a manner as to mislead the consumer.
In addition, Section 5(2)(b) of the Trademarks Act of 1965 provides that it is an infringement for any person to use a mark identical with that of the registered proprietor of the trademark or so nearly resembling it as to be likely to deceive or cause confusion, in the course of trade, in relation to any goods in respect of which it is registered, in an advertising circular or other advertisement issued to the public. Similarly Section 4.2.13 of the Advertising Practitioners Council of Nigeria (APCON) Code of Advertising Practice 1998 provides that “No advertisement should so closely resemble another advertisement as to mislead or confuse the public”.
The above three provisions are often relied on to support the ban of comparative advertising in Nigeria. However, portions of Section 4.2.12 of the APCON Code of Advertising Practice suggest that comparative advertisement may be allowed within certain limits. The section provides that “No advertisement should contain disparaging references to products or services of other advertisers. However, substantiated competitive claims involving comparison of a product with others in the same group shall not necessarily be regarded as disparaging.” What this section indicates is that if a truthful comparison of competing products is made as part of advertisements it just may be an exception to what currently upholds in Nigeria with regard to comparative advertisements.
This article is intended to provide general information about the subject matter. Professional legal advice should be sought about specific circumstances.