Comparative advertising limits on disparagement justify partial injunction against posters and modified electronic ad

Comparative advertising may praise a trader's own goods and compare them with a rival's goods, but it cannot state or imply that the competitor's product is bad or publish material whose dominant purpose is to injure the competitor's reputation. Applying that standard, the court held that the withdrawn point of sale posters could not continue in circulation, and the electronic advertisement with the red blob on the bottle of "Brand X" was also restrained. After the defendant's modifications, the remaining visual was not, at this stage, likely to be identified by consumers with the plaintiff's product. Whether the defendant's product was actually superior was left for trial.

---

---

Issues: Whether the plaintiff was entitled to an interim injunction restraining the defendant from circulating the impugned comparative advertisement and point of sale posters on the ground that they disparaged and defamed the plaintiff's product.

Analysis: The pleaded standard in comparative advertising permits a trader to praise its own goods and to compare them with competitors' goods, but it does not permit a statement that the competitor's goods are bad or a publication whose dominant purpose is to injure the competitor's reputation. The defendant withdrew the point of sale posters and agreed to remove the red blob from the bottle shown as "Brand X". After that modification, the fleeting visual shown in the electronic advertisement was not, at this stage, likely to be identified by consumers with the plaintiff's product. The question whether the defendant's product was in fact superior or contained more natural wax was left for trial.

Conclusion: The plaintiff was entitled to partial interim relief, and the defendant was restrained from circulating the point of sale posters and from publishing the electronic advertisement with the red blob on the bottle of "Brand X".

---