Q: Is comparing my products to a nationally recognized brand considered fair use as comparative advertising?

A: If you're asking if comparative advertising ("CA") is permitted, the general answer is "yes." ("Fair use" is a defense if sued.)

But the devil is in the details. For instance, the CA should be truthful and not be misleading or deceptive. An in-depth analysis will also consider what is being said about the advertiser and its product/service, and what the ad is saying about the competition and it's product/service, and how it's all being said.

Also, there are state and federal laws that govern comparative advertising. For instance, a false or misleading statement about a product or service that deceives consumers to cause consumers to not buy the product/service of the target of the ad might trigger a federal lawsuit under the Lanham (Trademark) Act.

Beyond the CA issue, certain products (like the example medicines) may be subject to other state and federal regulations. An IP attorney should be consulted with specific facts to help guide an informed decision.

Ben Klosowski

Registered U.S. Patent Attorney

Thrive IP® INTELLECTUAL PROPERTY LAW FIRM

220 N. Main Street, Suite 500

Greenville, SC 29601

Tel. 864.351.2468

Fax 866.747.2595

Ben@Thrive-IP.com

www.Thrive-IP.com

A: Comparative advertising may be a fair use defense to a claim of trademark infringement, however as my colleague stated, it depends on how the trademark was used, ie. use cannot be deceptive, disparaging, or misleading to the public.