71 Trademark Rep. 620 (1981)
Comparative Advertising, Commercial Disparagement and False Advertising

handle is hein.journals/thetmr71 and id is 636 raw text is: Vol. 71 TMR

COMPARATIVE ADVERTISING, COMMERCIAL
DISPARAGEMENT AND FALSE ADVERTISING*
By Jerome G. Lee**
Introduction
Advertising has become a glamorous multi-billion dollar
business. It pervades society. This huge business is not without
its share of legal problems and challenges from consumers, com-
petitors, industry and government. Those contested areas where
advertisers may overstep the bounds of fair play are the sub-
ject of this article.
They are: comparative advertising, commercial disparage-
ment and false advertising. The differences in these areas are
fairly clear. Comparative advertising is naming your competi-
tor's product or service and saying yours is better. It is easily
illustrated by the old slogan Anything his can do mine can do
better. Commercial disparagement is simply knocking the other
fellow's product. It is illustrated by the statement His is no
good. False advertising is saying something wrong about your
own product, i.e. Everyone prefers mine.
A. Comparative Advertising: Anything His Can Do,
Mine Can Do Better
It is generally accepted that the popularity of comparative
advertising started with the Avis WE TRY HARDER cam-
paign.1 In that ad campaign, consumers were informed outright
that Avis was number two in rental cars and asked to choose
Note the following related articles in a special TMR issue--July-August, 1977-
on Comparative Advertising: Stephen Nye, In Defense of Truthful Comparative Ad-
vertising, 67 TMR 353; Albert Robin and Howard B. Barnaby, Jr., Comparative Adver-
tising: A Skeptical View, 67 TMR 358; Stewart E. Sterk, The Law of Comparative
Advertising: How Much Worse Is Better Than Great, 67 TMR 368; and Suzanne
B. Conlon, Comparative Advertising: Whatever Happened to Brand X?, 67 TMR
407, and those articles cited therein and Nancy S. Greiwe, Antidilution Statutes: A New
Attack on Comparative Advertising, 61 Boston University Law Review 220 (January
1981).
*  Based on an address given at the mid-Winter meeting of the American Patent
Law Association, January 30, 1982, in Scottsdale, Arizona.
** Partner in the firm of Morgan, Finnegan, Pine, Foley & Lee, New York, N.Y.;
President, New York Patent Law Association, 1980-1981; Associate Member of USTA.
The author wishes to gratefully acknowledge the assistance of Margaret Ranft. Copy-
right @ 1982 Jerome G. Lee.
1. See, Nancy Giges, Comparative Ads: Battles That Wrote Do's and Don'ts,
Advertising Age 59 (September 29, 1980).

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