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Comparative Advertising of Trademarks

May 10, 2014
Comparative Advertising of Trademarks

Comparative advertising is a tool used in many countries to highlight the benefits of products recognized by the general public by means of the trademark indicated thereon, so that potential consumers can have additional information in order to make an informed decision regarding the purchase of advertised products.In Mexico, comparative advertising occurs in only rare cases, because including trademarks belonging to third parties in one’s own advertising is often considered an infringement that can give rise to penalties from Mexico’s IP authorities, based on the fact that current legislation on this issue establishes that no one “shall disparage or attempt to do so with respect to the products, services, industrial or commercial activities or the establishment of another,” and, therefore, Mexican laws prohibit the use of trademarks belonging to third parties without their prior consent.It is consequently subject to sanction if any person disparages its competitors, especially if a comparison is advertised, which results in such disparagement. The Mexican Intellectual Property Law clearly states that it is permissible to “compare products or services which support the trademark with the purpose of informing the public, as long as such comparison is not biased, false or exaggerated in terms of the Federal Consumer Protection Law.”Clearly, comparative advertising should not be focused on the disparagement of competitors, but instead should be used to highlight extraordinary or additional benefits of the product or service being offered. In other words, a comparison should not highlight the defects of the competitor, but should highlight the benefits of the products or services being advertised in comparison with those of its competitor, such as greater durability, resistance, lower price, etc.However, it important to consider the conditions set forth in the Federal Consumer Protection Law, which, in general terms, state that the dissemination of goods, products or services must be true and verifiable, not deceptive or abusive (information which although being true, induces error or confusion to the consumer because it is inaccurate, false, exaggerated, partial, artificial or biased, shall be considered deceptive or abusive).Therefore, it is worth noting that in Mexico comparative advertising is allowed. However, the guidelines set forth in the Federal Consumer Protection Law must be taken into consideration in order to avoid penalties in conducting such activities.

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