TRADEMARK LAW - ADVERTISING
Unfair advantage
• Does not require that there be a likelihood of confusion or a like-lihood of detriment to the distinctive character or the repute of the mark
• Where the third party seeks to ride on the coat-tails of the mark with a reputation in order to benefit from the power of attraction, the reputation and the prestige of that mark and to exploit, without paying any financial compensation, the marketing effort expended by the proprietor of the mark
Comparison lists – jeopardising the essential function of the mark
• The proprietor of a trade mark is entitled to prevent the use by a third party, in an unlawful comparative advertisement of a sign identical with that mark in relation to goods or services which are identical with those for which that mark was registered, even where such use is not capable of jeopardising the essential function of the mark.
Comparison lists – unfair advantage
• Stating explicitly or implicitly in comparative advertising that the product is an imitation of a product bearing a well-known trade mark makes the advertisement unlawful and any advantage gained as a result is unfair advantage
