Introduction: Competing Without Crossing the Line
In every competitive market — from Europe to Asia to emerging economies — brands are in constant battle for attention. But there’s a fine line between fair comparison and trademark infringement.
When companies try to highlight their product’s superiority by mentioning a competitor, they enter the territory of comparative advertising. Done right, it builds trust and transparency. Done wrong, it can trigger costly legal disputes and damage brand credibility.
This post explores how comparative advertising works, how it’s linked to trademark law, and what you can legally do to promote your product without infringing another brand’s rights.
What Is Comparative Advertising?
Comparative advertising is when a business compares its goods or services to those of a competitor. The goal is often to emphasize differences — like quality, price, or features.
Example:
A smartphone brand saying:
“Our battery lasts 30% longer than the leading brand.”
This can be legal if it’s accurate, verifiable, and fair.
However, if that “leading brand” is identifiable (even indirectly), and the claim is misleading, the competitor might have grounds to sue for trademark infringement or unfair competition.
Why Comparative Advertising Matters for Businesses
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Boosts transparency: It can help consumers make informed choices.
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Encourages innovation: Companies improve products to outperform others.
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But risky: Even truthful comparisons can lead to legal complaints if trademarks are misused or misrepresented.
In global trade — whether in the EU, EEA, or Asia — the laws allow comparative advertising, but only if certain conditions are met.
Legal Framework: How the Law Balances Competition and Protection
Most jurisdictions recognize that businesses should be free to compare — within limits.
In the EU, comparative advertising is governed by the Misleading and Comparative Advertising Directive (2006/114/EC), but similar principles exist in other regions under consumer protection and trademark laws.
The main rule:
👉 You can use another brand’s trademark only if the use is necessary to identify their goods and if it does not take unfair advantage of, or damage, their reputation.
So you can say “Our coffee is smoother than Starbucks®” only if:
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The statement is true and provable.
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You don’t create confusion about origin.
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You don’t insult or degrade the competitor’s brand.
When Comparative Advertising Becomes Trademark Infringement
Even when you think you’re being fair, the following can cross the legal line:
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Creating confusion:
If your ad makes consumers think the two brands are linked, endorsed, or part of the same group.
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Unfair advantage:
Using a famous mark just to attract attention (for example: “Better than Apple®”) without adding real comparison value.
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Discrediting or denigrating:
Saying or implying negative or false statements about the competitor’s brand or product.
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Misleading claims:
Any exaggeration or omission that misleads the average consumer about quality, origin, or value.
Global Perspective: Different Regions, Similar Challenges
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European Union: Strong consumer and competition laws; comparative advertising is allowed but strictly regulated.
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United Kingdom: Follows similar principles post-Brexit; clear evidence is required for every claim.
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United States: More freedom in comparative ads, but still limited by the Lanham Act (false advertising).
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Asia (e.g., Singapore, Japan, India): Laws are evolving; comparative ads are possible but monitored for unfair trade practices.
For global entrepreneurs, this means you must adapt your campaigns to local legal standards.
What’s legal in the U.S. might be illegal in Germany or South Korea.
Case Example (Simplified, Not Copyrighted)
A beverage company launches a campaign:
“Our energy drink gives you real power — not just wings.”
Even without naming the competitor, most consumers understand the reference.
This might be seen as taking unfair advantage of another brand’s reputation — potentially violating trademark rights.
Lesson:
When consumers can identify your target brand without you naming it, you are still legally responsible for how you use their image or reputation.
Business Takeaway
Comparative advertising can be a powerful marketing strategy — but it must be handled with precision.
Before launching a campaign:
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✅ Verify your claims with solid evidence.
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✅ Avoid using another brand’s logo, slogan, or distinctive visual identity.
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✅ Check local advertising and trademark rules.
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✅ Focus on your strengths rather than attacking others.
Remember: being bold is good business.
Being careless is not.
Introduction: Turning Legal Risk Into Strategic Advantage
In the first part, we explored what comparative advertising is — and how it can empower or endanger your brand. Now we move deeper:
What if you’re accused of using someone else’s trademark unfairly?
Or what if you want to defend your own brand when competitors reference it?
This part explains the legal defences, safe practices, and strategic responses that every entrepreneur or marketer should understand — whether you’re running ads in the EU, UK, or Asia.
1. When Use of Another Brand’s Trademark Is Allowed
Not all uses of another brand’s name are illegal. Some are considered “permitted uses” — especially when they are honest, necessary, and not misleading.
Nominative Use (Identifying the Competitor)
You can refer to a competitor’s trademark if it’s the only practical way to identify their product or service.
Descriptive Use
You can use words that are part of someone’s trademark if you’re using them in their ordinary descriptive meaning.
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Example: Describing your café as offering “fresh, organic coffee” doesn’t infringe the word “Organic™” even if someone registered that brand, as long as you’re using the term descriptively and honestly.
Comparative Fair Use
If your ad fairly compares specific features (like price, energy efficiency, or quality) and doesn’t mislead consumers or harm the competitor’s image, it can fall under fair use.
2. The “Honest Practices” Principle
Even when comparative advertising is technically allowed, it must comply with what courts call “honest practices in industrial and commercial matters.”
That means your ad must:
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Be truthful and verifiable.
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Avoid creating confusion between brands.
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Avoid unjustly exploiting the reputation of another company.
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Avoid discrediting or denigrating the competitor.
If your ad stays within these limits, you’re protected. But once you cross them — even unintentionally — you can face legal action.
3. Common Defences to Alleged Trademark Infringement in Advertising
If a business is accused of using a competitor’s mark unlawfully, these are the main legal arguments (depending on the country’s law):
⚖️ a) Consent
If the trademark owner explicitly or implicitly allowed the use (for example, in a partnership or authorized reseller agreement), it cannot later claim infringement.
b) Lack of Confusion
You can argue that your ad didn’t mislead consumers — that your audience clearly understood the distinction between your product and the competitor’s.
c) Use Outside Trademark Function
You can claim that your use didn’t serve as a “trade mark” — meaning it wasn’t used to identify the origin of goods, but simply as reference or comparison.
d) Descriptive Fair Use
If you used a common term, or a descriptive word, without any intent to take advantage of another’s brand reputation, this can be a valid defence.
e) Legitimate Comparative Advertising
In the EU and many other jurisdictions, if your advertising meets all fairness criteria (truthful, objective, not misleading), that alone can serve as a full defence.
4. Practical Example
Imagine you run a smartphone brand called “Lunex.”
Your campaign says:
“Lunex charges 50% faster than Galaxy or iPhone.”
If your test results are accurate and verifiable, and the ad clearly identifies who you are without creating confusion, this can be legitimate comparative advertising.
But if your ad says:
“Galaxy and iPhone are slow and outdated — only Lunex is worth buying.”
That crosses into denigration — and can lead to a lawsuit.
5. When Comparison Turns Into Infringement
The most common mistakes businesses make:
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Using the competitor’s logo or font style — even slightly altered.
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Repeating the competitor’s slogan — even as a joke.
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Showing competitor products in your ad without consent.
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Making unverifiable claims like “Better than Brand X.”
These not only risk trademark infringement but also damage brand credibility.
6. How to Compare Legally and Smartly
If you want to compare your products to others safely:
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Use neutral, factual language.
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Base claims on measurable data (tests, prices, features).
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Mention product categories, not brand names, if possible.
Example: “Our shampoo cleans better than other leading brands” is safer than naming a competitor directly.
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Always review with a legal or marketing compliance expert before publishing.
7. The Business Perspective
In global trade, fair comparison isn’t just about law — it’s about reputation management.
A responsible, transparent comparison can build consumer trust.
A careless one can destroy it.
Your audience appreciates honesty.
They don’t need you to attack others — they just need to understand why your product is worth choosing.
Final Insight for Entrepreneurs
Comparative advertising is both a weapon and a mirror:
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A weapon, when used strategically and ethically, to highlight your strengths.
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A mirror, reflecting how your brand values fair competition and truth.
Understanding these defences gives you not only legal protection, but also a competitive edge in markets where trust drives long-term success.
Introduction: When Brands Lose Their Shield
In the last part, we explored comparative advertising and how to use competitor trademarks legally. Now, we focus on what happens when a trademark can be revoked.
Revocation is crucial for entrepreneurs and global businesses because it affects market access, licensing opportunities, and competitive strategy. If a brand isn’t actively used or becomes generic, competitors might legally challenge it — potentially opening a door for your business.
1. Revocation Explained
A registered trademark can be revoked if the owner fails to actively use it or if other issues arise. The main principles:
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Any person can apply for revocation — you don’t need to be a competitor.
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Revocation removes the mark from the register for the future, meaning the trademark owner loses protection for new actions.
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Unlike invalidity (explained in the next part), revocation does not excuse past infringement.
⚠️ Why It Matters
Revocation protects the integrity of the trademark system: it prevents brands from “hoarding” rights they don’t use, and ensures consumers aren’t misled by inactive or abandoned marks.
2. Key Grounds for Revocation
a) Non-Use of the Mark
If a mark hasn’t been used genuinely for five years or more after registration, it may be revoked (s.46(1)(a) and (b)).
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Genuine use means real commercial use to maintain or create a market for goods or services.
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Token use (just to keep the registration) does not count.
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Example: A small business registers “Aurora Coffee” but never sells coffee under that name — another competitor can challenge it.
b) Promotional or Limited Use
Giving away products for free, or limited to internal tests, usually does not count as genuine use.
3. What Counts as Genuine Use
Courts consider:
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Market purpose: Is the mark being used to create or maintain a market outlet?
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Nature of goods or services: Are these typical products for sale in the sector?
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Scale and frequency: Even small businesses can count, but quality matters more than quantity.
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Connection to previously sold goods: If the mark is used for spare parts or services for existing products, this counts as genuine use.
Practical Tip for Entrepreneurs
Even small or niche use of your brand can maintain rights — like selling through a few verified retailers or providing essential services linked to your products.
4. Justifying Non-Use
Sometimes non-use can be defended if:
⚠️ Courts are strict: trivial variations often do not prevent revocation.
5. Genericide: When a Brand Becomes Common
A mark can be revoked if it becomes the generic name for the product.
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Classic example: Aspirin — originally Bayer’s brand, now the generic term for the drug.
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Courts assess consumer perception: does the average customer see the name as a brand, or just the product?
Business Insight
Avoid genericide by actively promoting your brand as a source identifier, not just a product type. Use consistent branding, trademarks, and messaging to maintain distinctiveness globally.
6. Marks Likely to Mislead
If a mark is inherently deceptive or misleads consumers about origin, quality, or characteristics, it can also be revoked.
Strategic Takeaway
Monitor competitors’ brands: if they mislead consumers, this could be an opportunity for challenge, especially in markets where enforcement is flexible.
7. Partial vs Total Revocation
Revocation doesn’t always remove the whole mark — sometimes only specific goods or services are affected.
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Example: A beer brand registered broadly for “beverages” might lose protection for other drinks, but retain rights for traditional beer.
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Consumer perception is key: courts assess how the mark has actually been used in the market.
8. Practical Advice for Business Owners
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Monitor your brand: ensure it’s actively used in every market where it’s registered.
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Document use: maintain invoices, marketing campaigns, and distribution records.
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Defend against competitors: check if unused marks in your sector are vulnerable for revocation.
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Protect distinctiveness: consistent logos, slogans, and brand identity prevent genericide.
Introduction: Beyond Revocation – Invalidity
In the previous part, we explored revocation and non-use, focusing on how trademarks can be lost if not actively used. Now, we examine invalidity, which is a stronger tool because it retroactively removes a trademark from the register and can free you from past infringement liability.
Invalidity is critical for businesses entering new markets — whether in the EU, UK, Asia, or globally — because it ensures the trademark system remains fair and competitive.
1. What is Trademark Invalidity?
Invalidity occurs when a trademark was registered in error.
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Any person can request invalidity — no need to be a competitor.
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The effect is retrospective: the mark is treated as never having existed from the date of registration.
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Unlike revocation, invalidity exonerates past infringers.
⚠️ Business Insight: If a competitor’s mark is invalid, you can safely launch your product without risking legal action.
2. Grounds for Invalidity
Invalidity can be based on several issues, mainly:
a) Breach of Absolute Grounds (s.3)
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Marks that cannot be registered at all, e.g., generic terms, descriptive marks, or misleading signs.
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Example: A brand trying to register “Instant Coffee” in a descriptive manner might be invalid.
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Exception: If the mark has acquired distinctiveness after registration, it may overcome the challenge.
b) Breach of Relative Grounds (s.5)
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Conflicts with earlier rights like prior trademarks, company names, or well-known brands.
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Only the owner of the prior right can challenge a conflicting mark.
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Time limit: action must usually be brought within five years of registration of the junior mark.
⚠️ Global Tip: When entering multiple markets, check earlier local and international trademarks to avoid conflicts.
3. Distinctiveness and Factual Evidence
For both revocation and invalidity, distinctiveness is crucial.
Example: A new smartphone brand “NovaTech” must show consistent marketing and sales to prove distinctiveness against generic or similar marks.
4. International Considerations
When doing business globally:
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EU & EEA: Exhaustion is regional; invalidity can remove marks retroactively within the EU.
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Non-EEA markets: Prior marketing outside the EU does not automatically exhaust rights, so check local trademark law.
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Asia: Many countries follow a first-to-file system. Invalidity actions often rely heavily on demonstrating priority or prior use.
⚠️ Strategy Tip:
Conduct a global trademark audit before launching. Identify weak marks, unused registrations, and potential conflicts to mitigate risk.
5. Practical Business Applications
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Spot competitor weaknesses: Look for marks not genuinely used or registered erroneously.
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Secure your brand: Actively use trademarks in all markets to prevent revocation.
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Enforce globally: Understand local laws — what counts as invalidity in the EU may differ in Asia.
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Document everything: Keep records of use, marketing, and distribution to defend your rights.
6. Example Scenario
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A company registers “GreenTeaPlus” in the EU but never markets it.
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A rival, planning to launch a beverage, notices the mark.
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The rival can file revocation for non-use or, if the registration was flawed, invalidity.
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Outcome: rival can safely enter the market, and the trademark owner loses rights — a critical lesson for businesses in competitive international sectors.
Key Takeaways from the 4-Part Series
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Comparative advertising must be fair and legal; know the rules.
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Parallel imports: intra-EU exhaustion vs. no international exhaustion.
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Revocation & non-use: genuine use is essential; monitor your trademarks.
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Invalidity: powerful tool to challenge wrongly registered marks; retroactive effect can remove liability.
💡 Business Insight: Proper trademark strategy isn’t just legal compliance — it’s a market advantage. Regularly audit your marks, monitor competitors, and understand regional differences to protect your brand and expand globally.
Q1: Which of the following describes lawful comparative advertising?
“Our coffee is smoother than other leading brands,” with verifiable testing, no logos used “Better than Starbucks®” with misleading claims about taste Using a competitor’s logo to highlight your product’s superiority
Q2: Which is a valid ground for revocation of a trademark?
The mark has not been genuinely used in the market for 5 years The mark is actively used and profitable in multiple countries The mark is used with slight modifications for marketing
Q3: When can a trademark be declared invalid?
It was registered in breach of absolute grounds (e.g., generic term) or relative grounds (conflicts with prior rights) The trademark has been in active use and is profitable worldwide The brand has strong consumer recognition and distinctiveness
