Below is an excerpt from
John McKeown's September 2015 Mailer.
This month I would like to continue the discussion concerning
comparative advertising and in particular rights under the Trademarks and Copyright Acts.
The Trademarks Act
Two sections of the Act are potentially available to a
brand owner asserting claims relating to a comparative
advertisement: subsection 7(a) and section 22. Subsection 7(a) provides that no person
shall make a false or misleading statement tending to discredit the
business, wares or services of the competitor.
The impugned statement need only be misleading without being
false and neither malice nor knowledge of the falsity of the
statement needs to be shown. All that needs to be proved is that
the statement complained of has been made by a competitor, that it
is false or misleading, that it tends to discredit the business,
wares or services of the plaintiff and damage has been suffered as
result of the making of the statement.
