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84 Harv. L. Rev. 1769 (1970-1971)
Issue 8

handle is hein.journals/hlr84 and id is 1795 raw text is: VOLUME 84

JUNE 1971

NUMBER 8

HARVARD LAW REVIEW
CONTROL OF ADVERTISING IN THE
UNITED STATES AND GERMANY:
VOLKSWAGEN HAS A BETTER IDEA
WTarren S. Grimes *
Regulation of advertising in the United States is far from ade-
quate. Mr. Grimes examines the German system of advertising con-
trol and conchdes that some of its features, such as enforcement by
private parties and the availability of quick injunctive relief, should
be adopted in the United States.
INSTRUCTIVE, but generally                ignored    in  the  continuing
discussion of the regulation of advertising in the United
States,' are the experiences of other countries. In the Federal
Republic of Germany, for example, where advertising occupies a
roughly equivalent place in the economy 2 and the parameters
of what is permissible in advertising are also comparable,' the
* Member of the California Bar. J.D., University of Michigan, x968. The
author is grateful to Dr. Paul Katzenberger and Dr. Gerhard Schricker of the
Max Planck Institute in Munich. Financial support during the time in which
this study was undertaken was provided by the German Academic Exchange
Service and the Volkswagen Foundation.
1 Many have taken a critical tone in examining the advertising industry. See,
e.g., E. Cox, R. FELLmETH & J. SCULZ, THE NADER REPORT ON THE FEDERAL
TRADE CoMMIssIoN (1969) [hereinafter cited as NADER'S RAIDERS]; J.K. GAL-
BRAITH, THE AFFLUENT SOCIETY x49-52 (2d ed. rev. x969); V. PACKARD, THE
HIDDEN PERSUADERS (1957). Others have viewed the present system of advertising
as a positive social good, see, e.g., J. BACKMAN, ADVERfISING AND COMPETITION
(1967), or at least not an unmitigated evil, cf., e.g., G. KATONA, THE POWERFUrL
CONSUMER 241-42 (i96o).
 Expenditures for advertising were estimated to be about 2.1% of the United
States' GNP in 1968, see U.S. DEP'T oF COMMERCE, STATISTICAL ABSTRACT OF THE
UNITED SJATES 775 (969), and about 2.9% of Germany's x968 GNP, see
ZENTRALAUSSCHTSSES WERBEWIRTSCHAFT E.V., WERBUNG 1968: JAHRESBERICHT 1968
25, 34 (I968). No attempt has been made to adjust for differences in method of
calculating GNP or advertising expenditures.
a For extensive commentary on German competition law, see I A. BAUMBACH
& W. HEFERMEHL, VETTBEWERBS UND VARENZEICHENRECHT (9th ed. 1964) (here-
inafter cited as HEFERMEHL]; 3 D. REIMER, DAS RECHT DES UNLAUTEREN WETT-
BEWERBS IN DEN MITGLIEDSTAATEN DER EUROPAISCHEN WIRTSCHAFTSGEMIEINSCHAFT
(1968) [hereinafter cited as REIMER]; A. ROSENTHAL, GESETZ GEGEN DEN UN-
LAUTEREN WFTTBEWERB (9th ed. 1969) [hereinafter cited as ROSENTHAL]; I E.
ULMER, DAS RECET DES UNLAUTEREN WETTBE WERBS IN DEN MITGLIEDSTAATEN DER
EUROPKISCHEN WIRTSCHAFTSGEMEINSCHAFT (1965) [hereinafter cited as ULMER];

T'7A

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