The First International Forum on Comparative Advertising, organized by the Competition and Intellectual Property Local Agency - INDECOPI - and primarily directed to advertisers and advertising companies, was recently held in Peru.

The purpose of this Forum was to share the various approaches on comparative advertising and their relationship to different disciplines

Comparative advertising is not a commonly used tool.

There is fear, among advertisers, to include in their ads the competitor's brand or name without its authorization. Such fear is triggered, however, by the unawareness or uncertainty existing about regulatory provisions on comparative advertising.

The standards and guidelines which define the lawfulness of comparative advertising are similar in several countries of America and Europe.

In Peru, comparative advertising is permitted so long as it meets the following requirements1.

Firstly, it is important to stress that advertising shall be deemed to be comparative advertising within the Peruvian legal framework to the extent that: (i) the ad has been verified to contain a direct or indirect reference to the offer of one competitor; and, (ii) the ad highlights the advantages of what is specifically offered in relation to a competing offer2.

A reference to or comparison among offers may be accomplished showing the product brand and packing, or else displaying the colors which are characteristic of the competitor in question's product.

Now, then, in order for comparative advertising to be considered lawful, it must meet the following requirements3:

(i) The comparison between one's own and another person's offer must be based on objective, verifiable or measurable elements and comprise truthful information adjusted to reality. It is not possible to compare elements, such as tastes, flavors or the advertiser's mere opinion.

(ii) The information to be conveyed must be clear and current to prevent ambiguity or inaccuracy. The advertiser must gather evidence that proves the truthfulness and accuracy of the compared information, prior to disseminating the advertising. In addition, such tests must satisfy certain parameters, such as having been designed with a comparable methodology; in case of surveys, these must be conducted over a statistically significant universe; preferably, resorting to an independent third-party to guarantee the robustness of results.

(iii) The use of unjustified irony, mockery or sarcasm must be avoided, and also any strictly personal references of the competitor such as to its nationality or religious beliefs, which do not transmit any useful information to the consumer.

While as a result of comparative advertising, damage may be caused to the incumbent competitor, such damage is tolerated and acceptable since, in exchange for it, consumers benefit from additional information on the compared products and the products upgrading and innovation are promoted, all of which may lead to a reduction in market prices.

Some final recommendations: comparative advertising is analyzed by the authority based on the analysis that would be made by a consumer; any legal texts to be included should be perceptible and not include information that is contrary to the ad main message; and rules protecting copyrights or other exclusive rights, as well as any sector-specific regulations, should be complied with.


1 Comparative advertising is regulated by the Law on the Suppression of Unfair Competition, approved by Legislative Decree N° 1044 and by the Precedent of Mandatory Compliance prescribed by INDECOPI through Resolution N° 547-2004/TDC-INDECOPI.

2 Law on the Suppression of Unfair Competition, Legislative Decree N° 1044.
Article 12 .- Acts of Undue Comparison and Similarity.-
12.1 Acts of comparison consist of the presentation of the advantages of what is specifically offered in relation to a competing offer (...).
To verify the existence of an act of comparison or an act of similarity it is necessary to perceive an unambiguous, direct or indirect allusion to what is offered by another economic agent, including through the use of another person's distinctive signs.

3 Law on the Suppression of Unfair Competition, Legislative Decree N° 1044.
Article 11.- (...) These acts are considered legal to the extent that:
a) they constitute information that is true in terms of its objective, verifiable condition, in line with reality;
b) they constitute information that is accurate in terms of its clear and current condition, presented in a way such that ambiguity or lack of accuracy is avoided as to the reality which pertains to the referred to economic agent or to what he is offering;
c) they are carried out in relevant manner in a way such that, inter alia, unjustified irony, satire, humor or sarcasm is avoided, in view of the circumstances; and,
d) they are performed in a relevant context in order to avoid allusions to nationality, beliefs, sexuality or any other strictly personal circumstances of the owners or representatives of another firm, inter alia allusions which do not transmit information allowing the consumer to evaluate the economic agent referred to or what he is offering regarding efficiency parameters.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.