Comparative Advertising: Avoiding Trademark Infringement, Disparagement

Lessons From Recent Cases, Avoiding Pitfalls, and Substantiating Comparative Claims

Recording of a 90-minute premium CLE webinar with Q&A


Conducted on Tuesday, June 25, 2019

Recorded event now available

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Program Materials

This CLE webinar will guide counsel to companies using or facing competitor comparative advertising. The panel will examine the use of competitor's marks/logos in advertising, puffery vs. actionable comparative advertising, the use of consumer-generated content related to competitors, and substantiating claims.

Description

Many companies use comparative advertising to differentiate and demonstrate that their product is superior to the competitors. Companies, however, should carefully navigate the potential legal issues that may arise when using a competitor's trademark or product in the company's advertising.

What are the parameters for claiming the company's product is better than that of the competitor? When does making negative claims about the competitor's product amount to disparagement? When does including a competitor's product or mark in one's advertising amount to trademark infringement? What evidence is needed to substantiate claims? Companies and counsel must be able to avoid potential pitfalls when using comparative advertising.

Listen as our authoritative panel of IP attorneys examines the use of competitor's marks/logos in advertising, what is permissible and what puts the company at risk of infringing the competitor's IP rights. The panel will also discuss puffery vs. actionable comparative advertising and the use of consumer comments or user-generated content related to competitors in advertising, and substantiating claims. The panel will also address what happens when an advertiser's claim is not intended to be comparative on its face but could reasonably be interpreted as such.

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Outline

  1. Use of competitor marks/logos in advertising
    1. What is permissible
    2. When can a competitor's marks, logos, trade dress be used in advertising
    3. Risks of infringing the competitor's IP rights
  2. Puffery vs. actionable comparative advertising
  3. Use of consumer comments, user-generated content related to competitors
  4. Substantiating claims
  5. Best practices for avoiding trademark infringement and other potential pitfalls

Benefits

The panel will review these and other vital questions:

  • When and how can a company use a competitor's trademark, logo, or trade dress in its advertising?
  • What strategies should counsel employ when challenging a competitor's comparative advertising?
  • District court vs. the National Advertising Division: Which forum should you choose for challenging comparative advertising claims?
  • When can companies use consumer-generated content about competitors in their advertising?
  • How can surveys be used to support arguments regarding implied claims?

Faculty

Cohen, Barry
Barry L. Cohen

Partner
Royer Cooper Cohen Braunfeld

Mr. Cohen focuses on IP litigation and unfair competition, among other areas. He develops litigation strategies that...  |  Read More

Naydonov, Anna
Anna B. Naydonov

Partner
Finnegan Henderson Farabow Garrett & Dunner

Ms. Naydonov focuses on trademark and false advertising litigation. She routinely litigates high-stakes cases for some...  |  Read More

Speth, Maria
Maria Crimi Speth

Shareholder
Jaburg Wilk

Ms. Speth practices in the areas of intellectual property, internet law and commercial litigation, representing clients...  |  Read More

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