New Discussion: Risks of Comparative Advertising and Establishment Claims, part 2!

Risks 02
To prove a superiority claim false, a claimant generally has to have affirmative evidence (e.g., its own testing) disproving the superiority of the referenced quality. Thus, although it is certainly advisable for an advertiser to have factual information to back up a superiority claim, liability in connection with such superiority claims largely depends on the truth of the statement itself, and not on whether the advertiser has conducted testing to adequately substantiate the claim. By contrast, in order to prove an establishment claim to be false, a claimant usually has to only prove that the referenced test is unreliable or does not in fact support the conclusion, without having to prove that the underlying comparison is false. Thus, advertisers using establishment claims as a means to compare products should realize that even if the underlying comparison may be true, liability could still exist if the referenced test is unreliable or not an accurate measure the specific feature being compared.

This is just one of many considerations that should be taken into account when undertaking a comparative advertising campaign. It is therefore advisable that advertisers and marketing professionals diminish potential exposure by consulting with a legal professional who can carefully evaluate the risks associated with particular comparative claims.



George S. Pavlik

Husch Blackwell LLP
George Pavlik is an attorney in the Chicago, IL office of the law firm Husch Blackwell LLP. He works in the firm’s intellectual property department and routinely assists clients in matters involving patents, trademarks, copyrights and false advertising.
The opinions expressed above are those of the author and do not necessarily reflect the views of Husch Blackwell, its clients or any of its or their respective affiliates. This article is for general information purposes only and is not intended to be and should not be taken as legal advice.

About Nate Marks

We live and work in a world of visual images.
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One Response to New Discussion: Risks of Comparative Advertising and Establishment Claims, part 2!

  1. Mike Willett says:

    The old addage CYA is more important than ever these days. It goes far beyond advertising, and
    should be imperative in all your dealings, business and personal. I just went through the latest
    bank statement I receive each month, only to discover a bunch, and I mean a bunch, of charges
    that were impossible to know just what they were for. After a long, long time on the phone with
    this particular bank, we discovered together, many charges that were not identified with anything
    anyone could identify.

    Take your credit cards out, or debit cards, and go through all the billing you have through your
    bank. You just might be surprised at what is being withdrawn from your accounts. Knowing that,
    one day soon the honest advertiser will be rewarded by business from people that actually
    care about such things as honesty, and do business with those they can trust. Making statements
    that can not be substantiated, or a bit fuzzy, will cost you far more in the long run, than being
    on top of what people think are great claims, only to discover that they are not true. If you
    think I’m wrong, just take a look at all the representatives in our US government, and check
    their claims. I think then you will feel somewhat surprised at just how much lying is prevalent
    in this country. Why join them when you could very well stand far above with just plain, old
    fashioned honesty!

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