Comparative advertising in action

As an unabashedly consumerist person, living in the States is kind of a dream. Not only is there a bigger selection of everything (I'm going to miss being able to order cherry coke everywhere), sticker prices and sales tax are both significantly lower than what I'm used to. We went to Portland, Oregon last weekend where sales tax is 0% - that's something you won't see in Canada.

Here's something else you won't see in Canada ... comparative advertising:

"Compare to Vaseline(R) Intensive Care(R) Cocoa Butter Deep Conditioning Lotion*"

What is comparative advertising?

Comparative advertising refers to advertisements that compare alternative brands on measurable attributes or price and identifies this other brand by name or some other insignia. Typically, obscure or generic brands will cite better known brands in an effort to attract consumers who are unfamiliar with their product. In this case, this CVS-brand product is saying that their cocoa butter moisturizer is comparable to the Vaseline-brand version. 

Legality of comparative advertising
Comparative advertising is legal in many jurisdictions including the United States, the UK, and Australia - but strangely not Canada. 

This is due to a somewhat odd interpretation of section 22 of the Trade-marks Act:

(1) No person shall use a trade-mark registered by another person in a manner that is likely to have the effect of depreciating the value of the goodwill attaching thereto.

Section 22 was almost certainly a reaction to trademark dilution in section 43(c) of the US Lanham Act and I don't think there was the intention to forbid comparative advertising. However, due to a Clairol International Corp. v. Thomas Supply, a 1986 Exchequer Court ruling, comparative advertising of wares* constitutes trademark infringement. 

*Comparative advertising for services is legal because of a differentiation in section 4's definition of the term "use" for wares and services.

The case involved two brands of hair dye products with one brand using a comparative colour chart on the box to indicate which approximate shades its products corresponded to its predecessor's. According to the ruling, this practice amounted to depreciation infringement prohibited by section 22. 

Two other cases, Eye Masters Ltd. v Ross King Holdings Ltd. and Future Shop Ltd. v A. & B. Sound Ltd. apprehensively followed the Clairol reasoning. Neither judgement seemed confident about the legality of comparative advertising. I wonder if Clairol will ever be overturned or if our Act will be updated with some sort of fair use/dealing provision analogous to section 29 of our Copyright Act or section 43(c)(4)(a) of the US Lanham Act:

The following shall not be actionable under this section:

Fair use of a famous mark by another person in comparative commercial advertising or promotion to identify the competing goods or services of the owner of the famous mark.

Even with a fair use defence, it seems companies are careful not to step on any toes:

"*This product is not manufactured or distributed by Chesebrough-Ponds USA Co., owner of the registered trademarks Vaseline(R) and Intensive Care(R)."

In the meantime, we're left with statements like "such-and-such is four times more effective when compared to competing brands."

Here's a cute example with Dakota Fanning as a wee lass (only 30 seconds long but you can skip to 0:22):