Trade Marks Ordinance, 2001 — section 68

68. Misleading and comparative advertisement..—_(1) Comparative advertisement shall, as far as comparison is concerned, be lawful subject to the following conditions, namely:

(a)it is not misleading according to clause (xxiv) of section 2, and sub-section

(2);

(b)it compares goods or services meeting the same needs or intended for the same purpose;

(c)it objectively compares one or more material, relevant, verifiable and representative features of those goods and services, which may include price;

(d)it does not create confusion in the market place between the advertiser and a competitor or between the advertiser’s trade marks, trade names, other distinguishing marks, goods or services and those of the competitor;

(e)it does not discredit or disparage the trade marks, trade names, other distinguishing marks, goods, services, activities or circumstances of a competitor;

(f)for products with designation of origin, it relates in each case to products with same designation;

(g)it does not take unfair advantage of the reputation of a trade mark, trade name or other distinguishing marks of a competitor or of the designation of origin of competing products; and

(h)it does not present goods or services as imitations or replicas of goods or services bearing a protected trade mark or trade name. 1 Subs. by Act No. LVIII of 2023, s.28.

(2)In determining whether an advertising is misleading, the tribunal shall take account of all its features, and in particular of any information it contains concerning

(a)the characteristics of goods or services, such as their availability, nature, execution, composition, method and date of manufacture or provision, fitness for purpose, uses, specification, geographical or commercial origin or the results to be expected from their use, or the results and material features of tests or checks carried out on the goods or services;

(b)the price or the manner in which the price is calculated, and the conditions on which the goods are supplied or the services provided; and

(c)the nature, attributes and rights of the advertiser, such as his identity and assets, his qualifications and ownership of industrial, commercial or intellectual property rights or his awards and distinctions.

(3)Any person having a legitimate interest in prohibiting misleading advertisement or regulating comparative advertising may institute legal action against such advertising before the tribunal.

(4)For all complaints made to the tribunal under sub-section (3), the tribunal shall take into account all the interests involved and in particular the public interest before it orders

(a)publication of a corrective statement by the advertiser;

(b)cessation of misleading advertising or unpermitted comparative advertising; or

(c)if the misleading advertising or unpermitted comparative advertising has not yet been published but publication is imminent, the prohibition of such publication.

(5)This section shall not exclude voluntary control of misleading or comparative advertisement by self-regulatory bodies and recourse to such bodies by the persons if proceedings before such bodies are in addition to the tribunal proceedings referred to in sub-section (3). CHAPTER VIII.___ASSIGNMENT AND TRANSMISSION