Nguyen Mai Han - Bahnhofprivat.bahnhof.se/wb250067/buongiorno/vietnam/documents/theses... · NGUYEN...

68
Joint Swedish-Vietnamese Master’s Programme MASTER’S THESIS NGUYEN MAI HAN A COMPARATIVE STUDY OF COMPARATIVE ADVERTISING IN VIETNAMESE AND ENGLISH LAW SUPERVISORS: Dr. Do Van Dai LLM.Ulrika Wennersten Dr. Christoffer Wong

Transcript of Nguyen Mai Han - Bahnhofprivat.bahnhof.se/wb250067/buongiorno/vietnam/documents/theses... · NGUYEN...

Joint Swedish-Vietnamese Master’s Programme

MASTER’S THESIS

NGUYEN MAI HAN

A COMPARATIVE STUDY OF COMPARATIVE ADVERTISING IN

VIETNAMESE AND ENGLISH LAW

SUPERVISORS: Dr. Do Van Dai

LLM.Ulrika Wennersten Dr. Christoffer Wong

1

Preface and Acknowledgements

The idea for this thesis comes to me when I made a report on a Business Law subject in the Joint Swedish - Vietnamese Master Programme. Based on materials on U.K and EU Advertising laws, I realized that there are many differences in points of view and law between Vietnam and these countries regarding Comparative advertising. While Vietnamese legislators are still suspicious of the benefits brought by Comparative Advertising, it is encouraged in E.U as it can can provide useful information for consumer and enhance fair competition between undertakings. From various standpoints, it is easy to understand why the law related to Comparative advertising is set up in different ways. In the internationalized context, when the promotion of goods and services is not restricted to a single nation, how to establish legal rules compatible with a common tendency based on the harmonization of the interest of undertakings and those of consumers is an issue worth concerning. For helping me complete this thesis, I extend my deepest thanks to my professors, my friends and my colleagues for their support, help and love. I would like to express my heartfelt gratitude to my supervisors, Dr.DoVan Dai and Ms.Ulrika Wennersten, who supported and gave me valuable comments and suggestions during my work. I am grateful to Dr. Christoffer Wong for his guidance and help throughout the course. I would also like to express my special thanks to the professors in the Law faculty of Lund University and the professors of Ho Chi Minh Law University for sharing their precious knowledge with me. Finally, I would like to thank my friends and my colleagues for supporting and encouraging me throughout my study. Although I tried my best, many deficiencies and shortcomings are still to be found in my thesis. I am grateful for any comments and suggestions.

Ho Chi Minh city, December 2008 Nguyen Mai Han

2

Table of Contents

Preface and Acknowledgements .................................................................................. 1 Table of Contents ......................................................................................................... 2 Abbreviations ............................................................................................................... 4 Executive Summary ..................................................................................................... 5 1.  Introduction .................................................................................................... 6 

1.1  Rationale ........................................................................................................ 6 1.2  Purpose ........................................................................................................... 6 1.3  Methods .......................................................................................................... 7 1.4  Delimitation ................................................................................................... 8 

2.  The definition of comparative advertising ..................................................... 8 

2.1  The general definition of advertising ............................................................. 8 2.1.1  The definition of advertising in English law ......................................... 9 2.1.2  The definition of advertising in Vietnamese law ................................ 12 2.1.3  Comparative remarks ........................................................................... 15 

2.2  The definition of Comparative Advertising ................................................. 16 2.2.1  The definition of comparative advertising in English laws ............... 17 2.2.1.1  Definition and classification .............................................................. 17 2.2.1.2  Analysing the definition of Comparative Advertising ....................... 19 

2.2.2  The definition of Comparative Advertising in Vietnamese law ........ 22 2.2.3  Comparative remarks ........................................................................... 24 

3.  Lawful comparative advertising .................................................................. 25 

3.1  Lawful comparative advertising in English law .......................................... 25 3.1.1  Conditions for comparative advertising to be lawful in English law 25 3.1.1.1  Negative conditions ............................................................................ 27 3.1.1.2  Positive conditions ............................................................................. 36 

3.1.2  General remarks .................................................................................... 40 

3.2  Lawful comparative advertising in Vietnamese law .................................... 41 3.2.1  Conditions for comparative advertising to be lawful under

Vietnamese law ...................................................................................... 41 3.2.1.1  General conditions ............................................................................. 42 3.2.1.2  Special conditions .............................................................................. 44 

3.2.2  General remarks .................................................................................... 46 

3.3  Comparative remarks ................................................................................... 46 

4.  Sanctions applied for unlawful comparative advertising ............................. 48 

4.1  Sanctions applied for unlawful comparative advertising in English law ..... 48 4.1.1  The enforcement authorities in English law and practice ................. 48 

3

4.1.2  Sanctions applied to unlawful comparative advertising .................... 49 4.1.2.1  Disciplinary Sanctions ....................................................................... 49 4.1.2.2  Administrative Sanctions ................................................................... 50 4.1.2.3  Civil sanctions .................................................................................... 50 

4.2  Sanctions applied to unlawful comparative advertising in Vietnamese law 52 4.2.1  Enforcement authority .......................................................................... 52 4.2.2  Sanctions ................................................................................................ 53 4.2.2.1  Administrative sanctions .................................................................... 53 4.2.2.2  Civil sanctions .................................................................................... 53 

4.3  Comparative remarks ................................................................................... 54 

5.  Conclusion ................................................................................................... 55 Table of Statutes and other Legal Instruments ........................................................... 57 European Community Directives ............................................................................... 57 

1. Council Directive 84/450/EEC of 10 September 1984 relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising O.J No. L 250, 19/09/1984 p.17 – 20. .................................................................................. 57 

National Legislations ................................................................................................. 58 England 58 Vietnam 58 

Table of Cases ............................................................................................................ 60 Court of Justice of the European Communities ......................................................... 60 

English Case ............................................................................................................... 60 

Bibliography ............................................................................................................... 61 

Official Reports and other Documents ....................................................................... 61 Monographs ............................................................................................................... 62 Articles in Journals, Anthologies etc. ........................................................................ 64 

4

Abbreviations

ASA Advertising Standards Authority in the UK BCAP Broadcasting Committee of Advertising Practice in the UKBPRs Busines Protection from Misleading Advertising

Regulations 2008 of the UK, SI 2008/1276 CAP Committee of Advertising Practice in the UK CPRs Consumer Protection from Unfair Trading Regulations

2008 of the UK, SI 2008/1277 ECJ Court of Justice of the European Communities EU European Union MCAD Misleading Comparative Advertising Directive Ofcom Office of Communications in the UK OFT Office of Fair Trading in the UK Radio Code Radio Advertising Standards Code of the UK The CAP code The British Code of Advertising, Sales Promotion and

Direct Marketing 11th edition, March 4th 2003 The CMRs The Control of Misleading Advertisements Regulations

1988 (amended 2000, 2003) TMA Trade mark Act 1994 of the UK TSS Trading Standards Service TV code Television Advertising Standards Code of the UK UK United Kingdom

5

Executive Summary

Comparative advertising is a sales promotion method that compares one’s own goods or services with those of another trader to emphasize price, value, durability or quali-ty.1 In the UK, comparative advertising is regulated in three ways: self–regulation; the common law and statute law.2 Accordingly, comparative advertising is lawful if it complies with some fairly obvious conditions e.g. it is not misleading, does not denigrate the competition, objectively compares material, relevant and verifiable features of the competitor’s products. In Vietnam, comparative advertising is regu-lated by the Law on commerce, the Law on competition and the Ordinance on Ad-vertising. Nevertheless, the legal provisions on comparative advertising in Vietnam are unclear and hard to apply in practice. Thus, this leads advertisers as well as the competent authority into difficulties when determining whether an advertisement is a comparative one or not and in drawing the line between lawful and unlawful com-parative advertising.

The first part of this thesis contains some general issues concerning the rationale, purpose, delimitation, and methodology of the thesis. The second part introduces, analyses and compares the definitions of advertising and comparative advertising in Vietnamese and English law. The third part discusses the conditions for lawful ad-vertising in each of the two countries. Legislation, case law and practice are analysed to produced a clear picture. Sanctions applied to unlawful comparative advertising will be presented and analysed in part four. Based on the method of comparison, re-marks at the end of each part will point out the similarities and differences between the issues in the laws of the two countries and suggest some improvements related to comparative advertising in Vietnamese law. Finally, part five will be a summary of the previous parts.

1 L.Bently and B. Sherman, Intellectual property,2nd ed.,Oxford University Press 2004, p.916. 2 Ansgar Ohly and Michael Spence, The law of Comparative Advertising:Directive 97/55/EC

in the United Kingdom and Germany, Hart Publishing 2000, p.5.

6

1. Introduction

1.1 Rationale

Advertising plays a very important role in the competitive strategy of many under-takings3 since advertising not only notifies customers of goods and services but also encourages, attracts and orients them in their purchases. Comparative advertising, as a special form of advertising, is also a sales promotion device that compares the products or services of one undertaking with those of competitors.4 It can be a useful source of information to the consumer, as well as an important tool in promoting competition.5 Thus, most countries have permitted comparative advertising. The UK was one of the first countries in the EU to permit comparative advertising if it com-plies with some provided conditions.

In Vietnam the current legal provisions on comparative advertising are vague and incomplete. In fact, a definition of comparative advertising as well as the way of dis-tinguishing between direct and indirect comparative advertising - which is very im-portant for determining the legality of comparative advertising - have not yet been provided by the law. It is in fact necessary to set up some specific legal provisions concerning comparative advertising in Vietnamese Law. Based on these legal provi-sions, undertakings will be able to determine the boundary between lawful and unlawful comparative advertising and adjust their advertising activities appropriately. This would enhance fair and equal competition between undertakings. From these reasons along with my own interest in it, I have chosen the topic “A comparative study of comparative advertising in Vietnamese and English law” for my thesis.

1.2 Purpose

By researching comparative advertising in Vietnamese and English law, this thesis will analyse and compare the definitions of advertising and of comparative advertis-

3 Julian Petley, Advertising:Technology,People,Process, BlackRabbit Books publishing, 2004

p.5. athttp://books.google.com.vn/books?id=aREzFOQ9jsC&printsec=frontcover&dq=%22+advertising%22&sig=ACfU3U2oAabErVdot9cOWmtSWD_MZs8GoQ#PPA3,M1.

4 As the BPRs states "Comparative Advertising means advertising which in any way, either explicitly or by implication, identifies a competitor or product offered by a competitor."

5 Theo Bodewig, “The regulation of Comparative Advertising in the European Union”, 9 Tu-lane European & Civil Law Forum, 1994, 179-214, at p.185. Also see Samia M. Kirmani,“Cross- boder Comparative Advertising in the European Union, 19 Boston College International & Com-parative Law Review, No.1, 1996, 201-215, at p.201.

Fel! Använd fliken Start om du vill tillämpa Heading 1 för texten som ska visas här.

7

ing and point out the similarities and differences in the definitions in two countries. Moreover, this thesis will present and analyse the conditions of lawful comparative advertising in both Vietnamese and English law through legislation, case law and practice to review the similarities and differences in the rules of legal comparative advertising under Vietnamese and English law. In addition, it will evaluates and compare the sanctions applied to unlawful comparative advertising. Finally, the the-sis will suggest some ways of improving the provisions on comparative advertising in Vietnamese law.

1.3 Methods

In the process of writing this thesis, several methods such as description, synthesis, analysis, interpretation and especially comparison were used. The descriptive and synthetic methods6 were used to collect all materials on comparative advertising and to give the main contents of the provisions on comparative advertising in Vietnamese and English law. In addition, based on the analytic method, fundamental concepts and conditions concerning the legality of comparative advertising in Vietnamese and English law will be examined. The comparative method, a study of the relationship between the laws of more than one country, is not limited to comparing legal rules but requires comparing the relevant non- legal (political, economic, ethical, religious, ect.) aspects of the two countries as well7. It can lead to a better understanding of Vietnamese laws on comparative advertising. In addition, the comparative method can help us to find out the similarities and differences in the laws related to comparative advertising and explain why these differences or similarities exist. Moreover, after having compared how to Vietnamese and English law deal with the laws of comparative advertising, we can evaluate the solution used in Vietnamese and English law in order to determine which of them is the best one.8 Finally, based on comparative method, the good legal rules of comparative advertis-ing developed in English law can be implemented to Vietnamese law.9

6 The descriptive method is a way of presenting and explaining provisions and cases, and the

synthetic method is a process by which we collect materials and combine them together resulting in the formation of something new.

7 Michael Bogdan, On the value and method of rule- comparison in comparative law, in Heinz – Peter Mansel, Thomas Pfeiffer, Herbert Kronke, Christian Kohler, Rainer Hausmann, Festschrift fur Erik Jayme, Sellier. European Law Publishing 2004, p.1239.

8 Ibid. p.1240. 9 Although I am aware that other factors can be used in comparing two legal systems, in this

thesis I do not have enough time to examine geography, climate and racial development or, relig-

A Comparative Study of Comparative Advertising in Vietnamese and English law

8

1.4 Delimitation

My research is limited to English law and Vietnamese law. Further, the UK law is based on EU Directives, therefore, this thesis also will examine these Directives re-lated to comparative advertising as well as cases from the ECJ interpreting of the Directives. Moreover, special rules applicable to comparative advertising related to certain goods or service such as medicinal products or solicitors are beyond the scope of this thesis. In addition, it does not mention criminal sanctions but concentrates on civil and administrative sanctions.

2. The definition of comparative advertising

2.1 The general definition of advertising

Advertising originated from the word “adverture” in Latin language means attrac-tiveness, charm and allurement.10 According to the Vietnamese dictionary, Advertis-ing means “propagandize, introduce goods, services or undertakings to consumers in many way with the purpose of persuading them to buy these goods or services and thus promote the goods and services”.11 According to the Oxford dictionary, adver-tising is drawing attention to or describing favourably (goods or services) in a public medium to promote sales or making them generally or publicly known, or seeking by public notice to make them so known.12 Advertising is a paid form of a nonpersonal message communicated by business firms, non-profit organizations, or individuals and is transmitted to a target audience through mass media such as television, radio, newspapers, magazines, direct mail, outdoor displays or mass - transit vehicles13 The

ion. I focus on the statutory, case law and preparatory and secondary sources such as articles and books.

10 Truong Dai Hoc Luat Ha Noi, Giao trinh Luat Thuong Mai Viet Nam tap 2 (Text book on Vietnamese Commercial Law volume 2 by the Law College of Hanoi), Cong An Nhan Dan Pub-lishing 2006, p.151. Also see Nguyen Thi Dung, “Khai niem quang cao trong phap luat Viet Nam và anh huong của no đen viec hoan thien phap luat ve quang cao” (The definition of advertising in Vietnamese law and its influences on improving law on advertising), 12 State and Law Jour-nal (2005), pp.33- 37, at p.33.

11 Nguyen Nhu Y, Đai Tu Dien Tieng Viet (Great Vietnamese Dictionary),Van Hoa Thong Tin Publishing 1998, p.1365.

12 Oxford Dictionary of current English, Oxford University Press 1993, at p.12.

13 http://www.answers.com/topic/advertising.

Fel! Använd fliken Start om du vill tillämpa Heading 1 för texten som ska visas här.

9

main objectives of advertising is14 informing and persuading consumers to purchase specific brands offered by the advertisers, thereby getting profits.15 However, adver-tising is also used to inform, educate and motivate the public about non-commercial issues, such as AIDS, political ideology, energy conservation, religious recruitment, deforestation and charity.16 Thus, as far as language alone is concerned, the notion of advertising not only covers the giving of information about goods and services to promote sales but also its use to inform, propagandize and motivate the public re-garding social and cultural life.

2.1.1 The definition of advertising in English law In the UK, advertising is regulated through self-regulation, case law and statutes. Self-regulation which has a long tradition in U.K commerce,17 plays an essential role in advertising.18 The most important element of this self-regulation is the code of advertising, the CAP code.19 It lays down standards for non-broadcast advertise-ments, sales promotions and direct marketing communications. This code reflects the principles of the International Code of Advertising and Practice issued by the Inter-national Chamber of Commerce20 The code is monitored by The Committee of Ad-vertising Practice (CAP). Although the code does not provide a definition of adver-tising, it does lay down the scope of the regulation of advertising activities. Pursuant to this code, statutory, public, police and other official notices/information, produced by public authorities and the like as opposed to marketing communications, are out-side its scope.21

14 Armand Dayan, Le marketing (translated into Vietnamese by Do Duc Bao), Ho Chi Minh

City publishing 2001 p. 8 (Originally publishing by Presses Universitaires de France 1985). 15 Monle Lee, Carla Johnson, Principles of Advertising: A Global Perspective, The Haworth

Press Publishing 2005, p. 3. 16 http://en.wikipedia.org/wiki/Advertising. 17 The first voluntary codes were introduced to regulate some professions at the end of the 19th

century: see L. Brandmair, Die Freiwillige Selbstkontrolle der Werbung, Carl Heymanns publish-ing 1978, p. 35.

18 G. Miracle and T.R. Nevett, Voluntary Regulation of Advertising, D.C Heath and Company publishing 1987, p.1.

19 British Code of Advertising, Sales Promotion and Direct Marketing 11th version 2003. 20 Ohly & Spence, supra note 2, p.6. 21 British Code of Advertising, Supra note 19, Art 1.2 (f).

A Comparative Study of Comparative Advertising in Vietnamese and English law

10

In relation to broadcasting advertising, the BCAP TV Code22 and The Radio Code23 set out the rules that govern advertisements on television and radio respec-tively. According to TV Code, advertising means “any publicity by advertisers in breaks during or between programmes. This is irrespective of whether payment is made.”24 From this definition as well as from the regulations in the code, we can conclude that it regulates not only advertising related to commerce but also advertis-ing concerning religion, faith, philosophies, beliefs25 and charity.26 The code applies to undertakings which use advertising to promote their business as well as to any other relevant organisation or individual. The Radio Code states “Advertising refers to any items, including spot advertisements and promotions with advertisers, which are broadcast in return for payment or other valuable consideration to a licensee or which seek to sell to listeners any products or services.27 This definition seems nar-rower than the one in TV Code as it is restricted to paid broadcasting advertising for the purpose of selling goods and services to listeners. Yet, the regulations of this code state that advertising is not only used to promote the commercial activities of undertakings but also to solicit donations by organisations28 and related to religion, systems of belief or philosophies of life.29 According to the Town and Country Planning Act (Control of Advertisements) Regulations 1992 and the Town and Country Planning Act 1990, “advertisement means any word, letter, model, sign, placard, board, notice, awning, blind, device or representation, whether illuminated or not, in the nature of, and employed wholly or partly for the purposes of, advertisement, announcement or direction.”30 The UK is a member of the EU. Thus, advertising activity is also regulated by the regulations which is enacted to implement the EU Directive regulating advertising into national law. With the purpose of unifying the European common market, har-

22 Television Advertising Standards Code November 2004 (The Code is an updated edition of

the 2002 ITC Advertising Standards Code.) 23 Radio Advertising Standards Code November 2004 (The Code is an updated edition of the

former Radio Authority’s advertising and Sponsorship Code). 24 Television Code, supra note 22 , Introduction (g). 25 Ibid Article 10.1. 26 Ibid Article 11.3. 27 Radio Code, supra note 23, section 1. 28 Ibid, section 3, rule 2. 29 Ibid section 3, rule 3. 30 The Town and Country Planning Act 1990, section 336(1).

Fel! Använd fliken Start om du vill tillämpa Heading 1 för texten som ska visas här.

11

monising the laws of its Member States and protecting the economic welfare of con-sumers by acting against unfair competition, the EU has adopted many directives concerning advertising e.g. Directive 89/552/EEC concerning the pursuit of televi-sion broadcasting activities31, Directive 97/36/EC32 amending Directive 89/552/EEC, Council Directive 84/450/EEC concerning misleading advertising (Directive 84/450/EEC),33 Directive 97/55/EC of European Parliament amending Directive 84/450/EEC concerning misleading advertising so as to include comparative adver-tising (Directive 97/55/EC)34 and Directive 2006/114/EC of the European Parliament and the Council concerning misleading and comparative advertising (Directive 2006/114/EC).35According to Directive 84/450/EEC “advertising” means the making of a representation in any form in connection with a trade, business, craft or profes-sion in order to promote the supply of goods or services, including immovable prop-erty, rights and obligations36. Directive 2006/114/EC, which repeals Directive 84/450/EEC, also provides the same definition of advertising at article 2(a). Thus, the advertising regulated in these directives is mainly that used by undertakings to pro-mote their business.

The UK has enacted The CMARs 1988 (amended 2000, 2003)37to transpose Di-rective 84/450/EEC into its national law and enacted The BPRs38 to implement Di-rective 2006/114/EC. Pursuant to the BPRs, “advertising” means any form of repre-sentation which is made in connection with a trade, business, craft or profession in order to promote the supply or transfer of a product.”39 “Product” in BPRs means any goods or services and includes immovable property, rights and obligation.40 so the definition of advertising in BPRs is the same as that in Directive 2006/114.

31 O.J No. L 298, 17/10/1989, p.23. 32 O.J No. L 202, 30/07/1997, p.60. 33 O.J No. L 250 , 19/9/1984, p. 17 – 20. 34 O.J No. L290, 23/2/1997, p.18- 23. 35 O.J No L376, 27/12/2006, p.21- 27. 36 Dir 84/450, Supra note 33, Article 2. 37 The Control of Misleading Advertisements Regulations 1998 (amended 2000,2003), SI

1988/915. This regulations regulated business to business relations and business to consumers relations in misleading and comparative advertising but it is now invalid.

38 The Busines Protection from Misleading Advertising Regulations 2008, SI 2008/1276. 39 Ibid Part 1.2 (1). 40 Ibid.

A Comparative Study of Comparative Advertising in Vietnamese and English law

12

The definition of advertising is also covered in the case Richard Butler v Derby City Council.41 The claimant displayed a banner in the front elevation of his property with the phrase “Save Five Lamps” in red capital letters and below this appeared the logo, telephone number and website of the “Derby Heart” organisation. The judge held that a banner is an advertisement if it is “in the nature of and employed, wholly or partly for the purpose of, advertisement, announcement or direction..”. The Derby Heart logo and the blue lower- case lettering giving its telephone number and website were advertising the existence of Derby Heart. It matters not whether, when com-bined with the words “Save Five Lamps”, the logo and lettering are regarded as be-ing in the nature of (and for the purpose of) an advertisement for Derby Heart and one of its aims, or as an announcement of its existence and one of its aims, or as a direction to those who might wish to support one of its aims.42 The court affirmed that the banner fell within the extended definition of advertisement in section 336(1).43 According to this, the definition of advertisement is clearly intended to have a wide meaning, covering not only materials which promote a product or ser-vice but also an announcement or direction publicizing the activities of a non-commercial organization.

In short, in English law, definitions of advertising can be found in regulations, statutes and case law. Based on the purpose and the applicable entities of each code, regulation or statute, advertising can be understood in a broad or narrow sense. In the narrow sense, advertising is the making of a representation in connection with trade to promote the supply of goods or services. In its broader sense, it covers not only the making of representations about goods or service in public to promote sales but also any announcement or direction about the activities of non-commercial organisations such as charities or religious organisations.

2.1.2 The definition of advertising in Vietnamese law In Vietnam, advertising has been prominent for some time.44 In the years of imple-menting the Centrally Planned Economy, advertising was not a concern of business

41 Case Richard Butler v. Derby City Council [2005] EWHC 2835 (Admin).

42 Ibid paragraph 29 of the judgement. 43 Ibid paragraph 30 of the judgement. 44 In the book “Thương hoc phương cham”(Guideline on commercial studies) in 1928 by Lu-

ong Van Can, it states that if a trader would like to increase the number of his consumers, to de-velop business, advertising should take place as it has much power. Thus, to make advertise-ments, it should not be regretted that it costs much money. Also see, Le Tai Trien, Luat Thuong Mai Viet Nam dien giai (Interpretation on Vietnamese Commercial law) Vo.1, Kim Lai Publish-ing 1976, p. 32.

Fel! Använd fliken Start om du vill tillämpa Heading 1 för texten som ska visas här.

13

entities because at that time the need to promote goods and services as well as com-petition between undertakings seem nonexistent. When Vietnam changed the country from one having a Centrally Planned economy to one with a market economy with a Socialist Orientation45, advertising become a vital promotional tool frequently used by business entities. From 1990 on, legal documents regulating advertising have been enacted.46 One of the important of these is Decree No.194 /CP on the 31st of Decem-ber, 1994 of the government on advertising activities on Vietnamese territory.47 Ac-cording to this Decree, advertising activities comprise the presentation of announce-ments regarding businesses, commodities, services, trade-marks, names and logos as required by the activities of the production-business-service establishments.48 It is also affirmed that the information activities of the agencies of the Party and State aimed at disseminating and popularizing their policies, undertakings and laws are not covered by this Decree. The definition of advertising in this Decree is thus a narrow one. The advertising only aims to cover businesses, commodities, services, trade-marks, names and logos. Information in the form of announcements, messages or classified advertisements is not considered as advertising.

Advertising activities are currently regulated by two main groups of legal norms. The first is legal documents drafted or enacted by the Ministry of Culture and Infor-mation49 which include the Ordinance on Advertising 2001 of the Standing Commit-tee of National Assembly and these guiding documents such as Decrees or Circular which also regulate advertising. The second is legal documents promulgated by the Ministry of Trading50which regulate commercial advertising. Pursuant to the Ordi-nance on Advertising 2001, advertising is interpreted in a broad sense, and means introducing business activities and goods and services to consumers, including ser-vices both with and without a profit-making objective.51 Advertising of profit-

45 Vietnam launched its Open Door policy called “Doi Moi” (renovation) in 1986. See the

sixth Party Congress Document. 46 See (a) Circular No.738/VP on August 10th,1990 of Ministry of Culture Information –

Sports and Tourism on Advertising management, (b) Joint Circular No.1191- TT/ LB on June 29th 1991 regulating on “label administration and product advertising“, (c)Decision No.3248/QĐ- UB on December 12nd on regulations of panel advertising in Hanoi.

47 This Decree is now invalid. 48 See Decree No.194/ND- CP on December 31st, 1994, Article 1. 49 Now, It is changed into the Ministry of Culture, Sports and Tourism. 50 Now, It is changed into the Ministry of Trading and Industry. 51 See Ordinance on Advertising No.39/2001/PL-UBTVQH 10 of 16 November 2001, Article

4(1).

A Comparative Study of Comparative Advertising in Vietnamese and English law

14

making services means advertising economic and social services, aiming to generate profits for service-providing organizations or individuals while advertisement of non-profit services means advertising services for realizing social policies and providing information in the form of announcements, messages or classified advertisements52. These regulations provide that advertising with a non-profit making objective should still be regulated to ensure the unified treatment, truthfulness and exactness of adver-tising; to protect the welfares of advertisers as well as the receiver; and to improve morality, lifestyles and ethnic culture.53 Decree No.24/2003 expressly stipulates that political information is not subject to regulation by the Advertisement Ordinance or this Decree.54

The Law on Commerce does not define advertising but it does give a definition of commercial advertising: “activities of commercial enhancement conducted by a business entity aimed at introducing customers to the business activities in goods and services of such business entity.”55 In practice, the case between Kymdan and Van Thanh,Uu Viet56 illustrates how this definition works. The case arose from the fact that, in 2001, KimDan Mattress Company placed a notice in some newspapers57 with the following content “KymDan has the honour to inform our honourable consumers that in a spring mattress, the force supporting the body is irregularly distributed and, in addition, its quality will decreased over time due to inferior raw material. If the elastic level of the springs is low, the mattress will become flat after being used for a long time. Conversely, if the elastic level of spring is high, springs can easily be bro-ken and this causes danger for users. In poly-urethane foam mattresses, the plasticity is very high. This kind of mattress is inelastic and as a result of this, it will quickly fatten. For these reasons, KymDan does not produce spring mattress or poly-urethane foam mattresses. All of KimDan’s products are made of 100% natural rubber has

52 See Decree No. 24/2003/ND-CP of March 13, 2003 detailing the implementation of the or-

dinance on advertising, Article 2. 53 Ministry of Culture and Information, Introduce some explainations on Ordiance on Adver-

tising on December 5th 2001. 54 See Decree No.24, supra note 52, Article 1. 55 Law on Commerce No. 36/2005/QH, Article 102. 56 Case Kim Dan v Van Thanh,Uu Viet, Quyet dinh giam doc tham cua Hoi dong tham phan

Toa an nhan dan Toi cao (the review judgements of the council of judges of the Supreme Peope Court No.20/2003/ DS – GDT, June 23rd 2003 ) 2003- 2004, Vo.1, pp. 119-124.

57 The newspapers include Sai Gon giai phong (Sai Gon Liberation newspaper), phu nu ( Woman Newspaper), Tuoi Tre Newspaper, Nguoi lao dong (The Labour newspaper), Sai Gon Tiep Thi (SaiGon Marketing Newspaper).

Fel! Använd fliken Start om du vill tillämpa Heading 1 för texten som ska visas här.

15

high durability and do not become flat over time…” The Council of Judges of the Supreme People Court affirmed that this notice is an advertisement of Kymdan. From this, it can be concluded that an announcement in the public media made by a company to introduce its goods will be an advertisement. Although Vietnamese law makes a distinction between advertising and commercial advertising and commercial advertising seems to be just a part of advertising, in practice, there is no distinction between the terms. In a word, pursuant to Vietnamese law, advertising involves in-troducing business activities and goods and services to consumers, including services both with and without a profit-making objective.

2.1.3 Comparative remarks Both English and Vietnamese law have defined advertising and regulated advertising activities doubtless because of the important role of advertising in the economy and society. Both laws defined advertising to cover the making of representations by un-dertakings about goods or services to promote sales and the announcements made by individuals or non-profit organizations giving information about their activities. Nevertheless, in Vietnamese law, the subjects subject to regulation as advertising have been restricted due to the use of the term “consumers” in the definition of ad-vertising. This means that advertising is only directed toward consumers while the subjects of advertising could be any audiences e.g. the watchers, listeners or readers of these advertisements in general. On the other hand, English law does not mention the person whom advertising is directed towards. It might be better to replace the term “consumers” in the definition of advertising in Vietnamese law by the term “audience” or “public”. This is reflected in the draft of the Law on Advertising.58 Accordingly, advertising means introducing business activities and goods and ser-vices to the public, including services both with and without a profit-making objec-tive.

English law only uses the one term “advertising” for advertising made by under-takings with a view to profit and advertising made by non-profit organisations or individuals. Contrariwise, Vietnamese law use two terms “advertising” and “com-mercial advertising” to refer to different kinds of advertising though there are few regulations relating to the advertising of non-profit services. Most of the provisions related to advertising are in the Ordinance on Advertising 2001 and the Commercial Law 2005, which is used to regulate commercial advertising. This creates an unnec-essary redundancy in advertising law. In the draft Law on Advertising, there are still

58 See the 4th Draft of Law on Advertising, Article 1.1, available at

http://www.vibonline.com.vn/vi-VN/Drafts/Details.aspx?DraftID=310&Version=4.

A Comparative Study of Comparative Advertising in Vietnamese and English law

16

no provisions related to the advertising of non-profit services.59By contrast, English law has special regulations covering special kinds of such as appeals for charitable donation or advertising related to religious or belief issues.60 Any future Law on Ad-vertising in Vietnam should contain more provisions related to the advertising of non-profit making purposes.

2.2 The definition of Comparative Advertising

Comparative Advertising is a special form of advertising61, a sales promotion device that compares the products or services of one undertaking with those of another, or several competitors.62Comparative Advertising persuades consumers of the superior-ity of one brand in a product category by comparing it implicitly or explicitly to an-other brand in the category63. It is also a useful source of information to the con-sumer, as well as an effective promotional tool for the advertiser64. Comparative ad-vertising has been widely used in the United States65 with 80% of all television ad-vertisements66 and 30% to 40% of all advertisements, containing comparative claims.67 Nevertheless, before the adoption of the EU directives related to compara-tive advertising, in some Member States, comparative advertising used to be consid-ered “bad” and unnecessarily harmful to competitors68. Thus, in order to enhance

59 Ibid. 60 See TV code, supra note 22, rule 10 and Radio Code, supra note 23, section 3, rule 2, rule

3. 61 Péter Miskolczi- Bodnár, “Definition of Comparative Advertising”, 3 European Integration

Studies (2004), pp. 25- 44, at p. 25. 62 Ibid at p.25, also see Opion on the Amended Proposal for a Council Directive concerning

Comperative Advertising and Amending Directive 84/450 concerning Misleading Advertising, 1992 OJ.(C49) 35, p.35.

63 http://www.answers.com/%22%20comparative%20advertising%22. 64 See Opion on Amended Proposal supra note 62. 65 Charlotte J. Romano, “Comparative Advertising in the United States and in France”, 25

Northwestern Journal of International Law and Business (2005), pp.371- 413, at p.371 66 Ibid. 67 Naveen Donthu, “A Cross-Country Investigation of Recall of and Attitude Toward Com-

parative Advertising”, 27 J. Advert.(2008), pp.111- 128 , at p.111. 68 Paul Spink and Ross Petty, “Comparative advertising in the European Union”, 47 Interna-

tional and Comparative Law Quarterly (1998), pp. 855- 876, at p. 855. The explicit identification of competitors is banned in Belgium, Italy and Luxembourg and generally prohibited as unfair

Fel! Använd fliken Start om du vill tillämpa Heading 1 för texten som ska visas här.

17

market transparency, provide information for customers, promote competitiveness between suppliers and create conditions for the free movement of goods and ser-vices69, the EU has enacted many directives to regulate comparative advertising70. In these directives, “comparative advertising” means any advertising which explicitly or by implication identifies a competitor or goods or services offered by a competitor.71

2.2.1 The definition of comparative advertising in English laws

2.2.1.1 Definition and classification

Comparative advertising is fairly popular in the UK. It has been calculated that more than 30 per cent of advertising there is comparative to some degree.72 Even before the EU promulgated Directive 97/55 regulating comparative advertising, a definition of comparative advertising has already appeared in English case law. In the case Bismag Ltd v. Amblins (Chemists) Ltd,73 Amblins issued an advertising pamphlet in which they claimed that most patent medicines were sold at too high a price by com-paring its product formula and prices with those of well known proprietary medi-cines, including Bismag’ product, to highlight its own lower prices. In this case, the court held that although the defendant had only used the plaintiffs' trade mark as a convenient method of describing the merits of their own goods, they had infringed the exclusive right of the plaintiffs.74In Compaq Computer Corporation and Another v. Dell Computer Corporation Limited and Another,75 Dell Ltd placed two adver-tisements which used the plaintiffs' trade mark COMPAQ in respect of the plaintiffs' personal computers to compare the plaintiffs' computer system with the defendant’s. In this case, the court also held that there was a clear case of infringement of the reg-

competition in Germany and France. It is permitted in Spain and the Netherlands but only in very limited circumstances.

69 Dir 97/55 supra note 34, recital 1, 2, 3, 5 and Dir 2006/114, supra note 35 recital 3, 4, 5, 6 , 20.

70 Dir 84/450/EEC, Dir. 97/55/EC and Dir 2006/114/EC. 71 Dir 2006/114, supra note 35, Article 2c. 72 Hazel Carty, “Registered Trade Marks and Permissible Comparative Advertising”[2002] E.

I. P.R, pp. 294- 300, at p. 294. 73 Case Bismag Ltd v. Amblins (Chemists) Ltd [1940] EWCA, Ch.D 667. 74 It is noted that at that time the Trade Mark Act 1938 is valid.

75 Case Compaq Computer Corporation and Another v. Dell Computer Corporation Limited and Another [1992] EWHC Ch.D.

A Comparative Study of Comparative Advertising in Vietnamese and English law

18

istered trade mark. From these cases, it could be concluded that comparative adver-tising is a form of advertising in which a trader refers to the trade marks of other traders (usually its competitors) to compare its products or prices with those of the other traders to highlight its products. In statutes, comparative advertising was first defined in the Control of Misleading Advertisement Regulations(amendment) 2000 now in the BPRs. The definition of comparative advertising in BPRs is similar to that in CMRs. According to rule 2(1) of BPRs “comparative advertising means advertis-ing which in any way, either explicitly or by implication, identifies a competitor or a product offered by a competitor.”76

The term “comparative advertising” may cover different forms of advertising claims.77 For Theo Bodewig, comparative advertising consists of single product comparative advertising, system comparative advertising or personal comparative advertising, depending on the nature of the object of comparisons 78. Usually the ob-jects of the comparison are the product or service offered by the advertiser and those of his competitors. The claim may be, for example, that X has as many features as Y but X costs less. In that case, a product or service is directly addressed and its pro-ducer is identified. However, the object of the comparison may not be a single prod-uct of an identified or identifiable competitor, but a whole range or category of prod-ucts with certain properties. This kind of comparison is most often found in adver-tisements of trade or industry associations promoting the products of their members, and comparing them to near substitute products of other branches of the industry. The association of producers of glass bottles may, for instance, place an advertise-ment alleging that glass bottles are better for the environment than plastic bottles. This kind of advertising is “systems comparisons” in which reference is made not to one brand or producer but to a whole class of products and a whole branch of indus-try. A third category of comparative advertising does not directly compare the prod-ucts or services of a competitor, but is instead directed to the competitors themselves and their personal characteristics. This category includes, for instance, reference to race, gender, religion, nationality, professional conduct and experience.

Apart from the object of comparison, other criteria for distinguishing different kinds of comparative advertising can be used. One such criterion is the degree of explicitness of the comparison. Comparative advertising may consist of direct com-parative advertising and indirect comparative advertising. The reference to the com-petitor may be explicit when the competitor is expressly mentioned in the advertis-

76 The BPRs, supra note 38, regulation 2(1) 77 Bodewig, supra note 5, at p.182. 78 Ibid.

Fel! Använd fliken Start om du vill tillämpa Heading 1 för texten som ska visas här.

19

ing. On the other hand, the reference may be more subtle and the competitor not mentioned expressly but the circumstances and the design or wording of the advertis-ing make it clear to the consumer whose products are being compared with those of the advertiser.

In addition, comparative advertising may divide into positive comparative adver-tising and negative comparative advertising79. Positive comparative advertising aims to take advantage of the reputation of a competitor’s product by identifying one product with the other. The advertiser claims that its product is “as good as” the competitor’s product, or that it is made the same way. A negative comparative adver-tisement, on the other hand, aims to alert the consumer to differences between the two products in a way which casts a bad light on the competitor’s product. The ad-vertiser often claims that its product or service is better than its competitor’s and thereby at least implicitly criticizes it. Advertisers can combine negative and positive comparison in its claims like “as good as ….but cheaper”

2.2.1.2 Analysing the definition of Comparative Advertising

In order to engage in comparative advertising under English law, an advertisement must identify “a competitor or products offered by a competitor.” In addition, based on case law, the ECJ also stated that the test for the comparative nature of advertising is whether this advertising could identify, explicitly or by implication, a competitor or goods or services offered by a competitor.80 The identification of a competitor or of the product of a competitor plays an important role in determining whether an advertisement is a comparative one or not. Hence, an advertisement that only looks as the advertiser’s own products, for example comparing the present price of a product with the old price or an earlier model with its new product, are not considered as comparative advertising.81 This is correct because this type of comparison does not refer to an identifiable competitor or its product. Also, advertising comparing the advertiser’s own products to each other does not involve the conflicts of interest/infringement issues caused by normal Comparative

79 Ardi Kolah, Essential Law for Marketers, Butterworth - Heinemann Publishing 2002, at p.

183. http://books.google.com.vn/books?id=5_TzRGogOhsC&pg=PA184&dq=%22comparative+advertising%22&lr=&sig=ACfU3U3btGdcUSSwcgltG9baW82CHNGzUg#PPA183,M1; see Ulf Doepner and Frank – Erich hufnagel, “German Courts Implement The EU Directive 97/55/EC – A Fundamental shift in the law on Comparative Advertising?” 88 Trademark Reporter(1998) , pp. 537-540, at p. 541.

80 See Case C-112/99 Toshiba Europe [2001] ECR I- 7945, paragraph 29. 81 Miskolczi- Bodnár, Supra note 61, at p. 33.

A Comparative Study of Comparative Advertising in Vietnamese and English law

20

advertising. Further, if an advertiser uses the legally protected word “Champagne” in an advertisement for computers, or indeed mineral water, this does not fall within its scope either even though comparison are made, because wine is not sold in competi-tion with computers.82As mentioned above, the main element in determining a com-parative advertising is that there is a reference to a competitor or products of a com-petitor. Unless the undertakings or their products referred to in advertising compete with the advertiser, there is no comparative advertising. Whether there is a competi-tive relationship between undertakings depended on the finding that the goods that they offer have a certain degree of substitutability for one another. Products which are, to a certain extent, capable of meeting identical needs may be substitutable for one another.83 So, in order to determine whether there is a competitive relationship between the advertiser and the undertaking identified in the advertisement, it is nec-essary to consider (a) the current state of the market and consumer habits and how they might evolve; (b) the part of the Community territory in which the advertising was disseminated, without, however, excluding, where appropriate, the effects which the evolution of consumer habits seen in other Member States might have on the na-tional market at issue, and (c) the particular characteristics of the product which the advertiser sought to promote and the image which it wished to impart to it. For the purpose of measuring the possible degree of substitution, it is impossible to restrict oneself to consumer habits in a Member State or in a given region.84

An advertisement which explicitly or by implication identifies a competitor or products of a competitor will, as noted, fall under the definition of comparative ad-vertising. Direct comparative advertising is present when the name, or brand of the competitor or the product of the competitor is expressly mentioned in the compari-son. Indirect identification exists if there is a reference to the competitor, the business circumstances of the competitor or a direct or indirect group designation85. Neverthe-less, if advertising only refers to a type of product but does not refer to a specific undertaking or product, it raises the question whether it is still comparative advertis-ing. A recent judgement of the ECJ86 affirms that a reference in an advertisement to a type of product and not to a specific undertaking or product can be considered to be

82 Jeremy Phillips, Trade mark Law - A Practical Anatomy, Oxford University Press 2003,

p.249. 83 Case 170/78 Commision v United Kingdom [1980] ECR 417, paragraph 14 and Case

356/85 Commission v Belgium [1987] ECR 3299, paragraph 10. 84 Case C-112/99, supra note 80, at paragraph 42 of the judgement. 85 Miskolczi- Bodnár supra note 61, p.10. 86 Case C- 381/05 Delandtsheer Emmanuel SA [2007] ECR I- 08501.

Fel! Använd fliken Start om du vill tillämpa Heading 1 för texten som ska visas här.

21

comparative advertising where it is possible to regard that undertaking or the goods that it offers as actually referred to by the advertisement.87 According to case law, the definition is broad and covers all forms of comparative advertising, so it is sufficient for there to be a statement referring even by implication to a competitor or to the goods or services which he offers.88 If an undertaking solely refers to a type or product, this does not mean that the advertisement in principle falls outside the scope of the directive. In practice, where there is only one competitor in the particular mar-ket, it is not difficult for an undertaking to affirm an implied reference when the ad-vertiser claims his product’s superiority without naming the competing product.89

A literal interpretation of the definition of comparative advertising which required a single competitor of the advertiser, or the goods or services of a single competitor, to be identified would be incompatible with the broad definition of comparative advertising and, accordingly, contrary to the case law of the ECJ. That a number of the advertiser’s competitors or the goods or services that they offer may be identified as being referred to by the advertisement is of no relevance for the purpose of recognising the comparative nature of the advertising. Thus, it is for the national courts, in each individual case, to determine whether, having regard to all the relevant elements of the case, an advertisement enables consumers to identify, explicitly or by implication, one or more specific undertakings or the goods or services that they provide as actually referred to by the advertising90. The court, when making that assessment, must take into account the presumed expectations of an average consumer who is reasonably well informed and reasonably observant and circumspect.91

Note that the definition of comparative advertising does not require that the refer-ence to a competitor or products of a competitor involves an actual comparison. In particular, it is not the case that advertising must contain claims on its superiority to its competitor or regarding the products of the advertiser and those of competitors.

87 Ibid, paragraph 24. 88 Ibid paragraph 16, also see Case C-112/99 supra note ,81 paragraphs 30 and 31, and Case

C-44/01 Pippig Augenoptik [2003] ECR I-3095, paragraph 35.

89 Munuel Morasch, Comparative Advertising: A comparative study of trade mark laws and competition laws in Canada and the European Union, p.48, available at http://papers.ssrn.com/sol3/results.cfm?RequestTimeout=50000000; also see Ohly & Spence supra note 2, p. 46.

90 Case - 381/05 supra note 86, paragraph 22. 91 Ibid, paragraph 23. Also see Case C-44/01 Pippig Augenoptik [2003]ECRI- 3094,

paragraph 55, and Case C-356/04 Lidl Belgium [2006] ECR I-8501, paragraph 78.

A Comparative Study of Comparative Advertising in Vietnamese and English law

22

This is confirmed by the eighth recital of the preamble to Directive 2006/114.92 Case law also shows that in order for there to be comparative advertising within the meaning of the definition, it is sufficient for a representation to be made in any form which refers, even by implication, to a competitor or to the goods or services which he offers. There is no need for a comparison between the goods and services offered by the advertiser and those of a competitor.93 In Toshiba v Katun (Case C-112/99), that Katun in its catalogue refers to the Toshiba machines with which its spare parts can be used, and that in the list of available parts identifies the corresponding To-shiba part under the heading OEM product number could be considered as a refer-ence to Toshiba. Though there is no claim containing a comparison saying, for in-stance, that Katun’s product is better than Toshiba’s, there is a competitive relation-ship and there is a reference to a competitor or product of competitor. This reference is enough to constitute comparative advertising.94

2.2.2 The definition of Comparative Advertising in Vietnamese law There are a few regulations on comparative advertising in Vietnamese law, but it seems that Vietnamese legislators do not pay much attention to this field. Before the Law on Competition was adopted, comparative advertising was in the list of prohib-ited advertising regulated by Commercial Law.95 The Ordinance on Advertising 2001 does not list comparative advertising as a prohibited advertising activity. Yet, it is still prohibited in the Decree guiding this Ordinance.96 At present, comparative ad-vertising is regulated by Commercial Law 200597 and Law on Competition 2004.98 Nevertheless, these laws as well as the draft Law on Advertising99 do not have a definition of comparative advertising and also do not mention any elements which may indicate its presence. In practice, advertisements like, for example “Detergent X is the best”, “Conditioner Y is more fragrant” or “Bank Z is the best foreign bank in Vietnam”. commonly appear in broadcasting and non broadcasting media. These

92 See the eighth recital of the preamble to Dir 2006/114, supra note 35. 93 Case C-112/99 Supra note 80, paragraph 31. 94 Ibid , paragraph 40. 95 See Law on Commerce No.05/1997/QH 9 of 10 May 1997, Article 192(2). 96 See Ordinance on Advertising, supra note 51, Article 5, also see Decree No. 24/2003 supra

note 52, Article 3(7). 97 Law on Commerce 2005, supra note 55, Article 109(6). 98 See Law on Competition No.27/2004/QH 11 of 03 December 2004, Article 39 (6). 99 See draft 4th of Law on Advertising, supra note 58.

Fel! Använd fliken Start om du vill tillämpa Heading 1 för texten som ska visas här.

23

raises the question whether such advertisements constitute comparative advertising. It is hard to answer this question in the absence of a definition. Normally, where law does not provide a definition, we can reason that the term should be understood in the common or usual way.100 So what is the common understanding of comparative advertising ? According to the Vietnamese dictionary, “comparison” means consider-ing or examining one thing and another with a view to recognizing similarities and differences between the things compared or their relative superiority or inferiority.101 Based on the definition of the terms “comparison” and “advertising”, we can say that comparative advertising means activities of commercial enhancement conducted by business entities aimed at introducing customers to the goods and services of such business entity by claiming similarities, differences or relative superiority between the goods or services of the advertiser and those of the competitor. Accordingly, comparative advertising may consist of advertisements claiming equality, advertise-ments claiming superiority and advertisements claiming superlative or unique qual-ity.102

An advertisement claiming equality is a kind of advertising which exploits the reputation of the advertiser’s own products or service by advertising them as being equivalent to those of the competitor. Advertisements claiming superiority claim that the products of the advertiser have a quality or style superior to those of the competi-tor. Superlative comparative advertising claims that the products of the advertiser are the best on the market, that its quality, design, service.. is the best or that none of the other products on the market have the same standards as its products. Depending on the degree of comparison and the truthfulness of the information, the likelihood of harm to the consumer will vary. Yet, it seems that this definition we have suggested is both too broad and too narrow. For example, advertising which does not present a comparison but merely refers to the products of competitors would not be seen as comparative advertising. On the other hand, advertising which compares its product with products of another undertaking which is not its competitor would be seen as comparative advertising. In the KymDan case,103 Kymdan mentioned the quality of

100 Phan Huy Hong, “Quang cao so sanh trong phap luat canh tranh - Mot nghien cuu so sanh

Luat” (Comparative advertising in Competition Law- A comparative legal study), State and Law Journal No.1 (2007), pp. 43-51, at p.44.

101 Nguyen Nhu Y, Dai Tu Dien Viet Nam (Great Vietnamese Dictionary), Minister of Educa-tion and Vietnamese Culture & Language central publishing 2000, p.1448.

102 Le Danh Vinh, Hoang Xuan Bac, Nguyen Ngoc Son, Phap luat canh tranh tai Viet Nam (Competition laws in Vietnam), Judicial Publishing 2006, p. 165.

103 Case Kim Dan v Van Thanh,Uu Viet, supra note 56, pp.119-124.

A Comparative Study of Comparative Advertising in Vietnamese and English law

24

various kinds of mattress in its advertisement. It pointed out the disadvantages of kinds of mattress that it did not produce. On the other hand, it highlighted the bene-fits of the rubber mattress it did produce. The Supreme People Court affirmed that Kymdan had used an advertisement which compared its goods with those of other undertakings (including Van Thanh and Uu Viet). From this case, it could be as-sumed that comparative advertising is advertising in which the advertiser compares its goods with those of other competitors with or without mentioning their names. However, settled cases and the general understanding are not enough to enable one to affirm whether an advertising is a comparative one because neither is regarded as a legal source.

2.2.3 Comparative remarks Like Vietnamese law, before the enactment of Directive 97/55, English statutes did not contain a definition of comparative advertising though comparative advertising was permitted. After Directive 97/55 was adopted, the UK amended the CMRs 1988 to implement this directive. As a result, a definition of comparative advertising pro-vided in what is now regulation 2(1) of BPRs. On the other hand, there is no official definition on comparative advertising in Vietnamese law at all even though the na-ture of comparative advertising is different from that of general advertising. Deter-mining whether an advertisement is a comparative one is an important step prior to examining whether it is permitted or prohibited.

The definition of comparative advertising in English law has also been examined by case law and the ECJ. According to case law, comparative advertising is to be understood in a broad sense. All advertising which can explicitly or by implication identify a competitor or product offered by a competitor will constitute comparative advertising. Advertisements which only compare the advertiser’s own product among themselves or which do not identify a competitor or the products of a com-petitor are outside its scope. Unlike English law, Vietnamese law does not accept case law or the judgement of courts as sources of law. Thus, the judgement of the court in KymDan case only has value as a reference and is not a rule for determining whether advertising is comparative. Therefore, it is necessary to provide a definition of Comparative advertising in Vietnamese law as this will help traders draw a line between advertising and comparative advertising. In addition, this would allow trad-ers to be more flexible in their promotional activities and would create a fair com-petitive environment between undertakings. The definition of comparative advertis-ing in English law could be used as a starting point for Vietnamese law. It should be supplemented by a definition of comparative advertising in the law of advertising. Comparative advertising would then mean advertising which explicitly or by impli-cation identifies a competitor or a product offered by a competitor.

Fel! Använd fliken Start om du vill tillämpa Heading 1 för texten som ska visas här.

25

3. Lawful comparative advertising

3.1 Lawful comparative advertising in English law

The UK is one of the Member States of the EU, which regarded comparative adver-tising as legal before the EU Directives regulating misleading and comparative ad-vertising were adopted.104 Comparative advertising can provide consumers with use-ful information, encourage fair competition and suppliers and enhance market effi-ciency.105 Comparative advertising, if conducted in an unlawful way which presents inadequate or overly subjective information on competing goods and services may denigrate competitors and derive unfair advantages from such inaccurate compari-sons.106 It would be desirable to set up conditions to ascertain the legality of com-parative advertising.

3.1.1 Conditions for comparative advertising to be lawful in English law

The 1994 TMA permitted the use of a sign or trade mark of another business where the use of a mark in advertising is "for the purpose of identifying goods or services as those of the proprietor or a licensee” is not contrary to honest practices in industrial or commercial matters; and does not take unfair advantage of, or is not detrimental to, the distinctive character or repute of the trade mark.107 BPRs, which was enacted to transpose directive 2006/114 into national law is considered as the main statutory provision regulating comparative advertising in the UK. This regulation has set out criteria to verify the legality of comparative advertising.108 Further, at common law, comparative advertising is only permissible if it does not amount to passing off109,

104 Brunhildesteckler Steckler and Frank Bachmann, “Comparative Advertising in Germany

with Regard to European Community Law”, 10 E.I.P.R (1997), pp.578-586, at p.578. 105 See Preamble of Directive 97/55 supra note 34 and Preamble of Directive 2006/114 supra

note 35. Besides, World Federation of Advertisers (WFA) at http://www.wfanet.org and Euro-pean Association of Commercial Communications Agencies (EACA) at http://www.eaca.be af-firm that “comparative advertising, when correctly done is a desirable means of product commu-nication.”

106 Miskolczi- Bodnár, supra note 61, at p.26.

107 Section 10(6) Trade Marks Act 1994. 108 See Dir 2006/114, supra note 35, Article 4. These conditions will be analysed below. 109 Passing off is a common law tort which can be used to enforce unregistered trademark

rights. Passing off is designed to prevent trader from misrepresenting his goods or services as being the goods and services of the plaintiff, and also prevents one person from holding out his

A Comparative Study of Comparative Advertising in Vietnamese and English law

26

injurious falsehood110, or defamation.111 112 The CAP code is built upon four general principles: (i) that all advertisement should be legal, decent, honest and truthful, (ii) that all advertisements should be prepared with a sense of responsibility to consum-ers and to society, (iii) that all advertisements should respect the principles of fair competition accepted in business and (iv) that no advertisement should bring adver-tising into disrepute.113 There are several specific rules of BCAP that directly impact on comparative advertising. Under rule 18.1 comparisons with identified competitors and/ or their product are allowed “in the interests of vigorous competition and public information. They should neither mislead nor be likely to mislead”.114 The other conditions e.g. comparing products meeting the same needs or intended for the same purpose, objectively comparing one or more material, relevant, verifiable and repre-sentative features of those products…115 are the same as the conditions provided for lawful comparative advertising in BPRs. Finally, the TV Code and the Radio Code require that advertising be “legal, decent, honest and truthful.”116 Both of these codes also contain specific rules regulating comparative advertising that are equivalent to those in the BPRs and the CAP code.117 The conditions for verifying the legality of Comparative advertising can be divided into two kinds: negative and positive.118

goods or services as having some association or connection with the plaintiff when this is not true.

110 Injurious falsehood is a false statement made maliciously that causes damage to the claim-ant’s business, goods or services.

111 Defamation is the statement which might tend to harm the reputation of the competitor so as to lower him or her in the estimation of the community or to defer third parties from associat-ing or dealing with him or her.

112 Paul Stephenson, “Comparative Advertising and Intellectual Property Rights”, [2006] E.I.P.R, pp. 182 – 191, at p.182. Also see Ohly & Spence, supra note 2, p. 8.

113 The CAP code, supra note 19, p.6. 114 Ibid rule 18.1. 115 Ibid rule 18.2, 18.3, 18.4, 20.1, 20.2. 116 See Television Code, supra note 22, p.6 and see Radio Code, supra note 23, p.1. 117 Ibid, rule 5.4.6, p. 23, and see Radio Code, supra note 23 rule 6, pp.11- 12. 118 See Miskolczi- Bodnár ,supra note 61, p.6.

Fel! Använd fliken Start om du vill tillämpa Heading 1 för texten som ska visas här.

27

3.1.1.1 Negative conditions

The negative conditions are that comparative advertising is not misleading;119 does not create confusion among traders,120 does not discredit or denigrate the trade marks, trade names, other distinguishing marks, products, activities, or circumstances of a competitor.121 It must not take unfair advantage of the reputation of a trade mark, trade name or other distinguishing marks of a competitor or of the designation of origin of competing products.122 Finally, it should not present products as imitations or replicas of products bearing a protected trade mark or trade name.123

a. Comparative advertising is not misleading The prohibition of misleading comparative advertising is easy to justify.124 Mislead-ing advertising provides untrue and deceptive information which can give rise to erroneous consumer decisions, thereby distorting the market. As misleading advertis-ing is incapable of assisting rational consumer choice, it also affects the competitor’s goodwill to a disproportionate extent. Pursuant to regulation 4 of BPRs, comparative advertising shall be permitted only when it is not misleading under regulation 3 of BPRs and under regulation 5 of the CPRs125 or a misleading omission under regula-tion 6 of CPRs. According to regulation 3 paragraph 2 of BPRs, advertising is mis-leading which (a) in any way, including its presentation, deceives or is likely to de-ceive the traders to whom it is addressed or whom it reaches; and by reason of its deceptive nature, is likely to affect their economic behaviour; or (b) for those rea-sons, injures or is likely to injure a competitor. According to regulation 5, a mislead-

119 The BPRs, supra note 38, Part 1 regulation 4a,b (replicates Article 4a of Directive

2006/114). 120 Ibid regulation 4e (replicates Article 4h of Directive 2006/114). 121 Ibid regulation 4f (replicates Article 4d of Directive 2006/114). 122 Ibid regulation 4h (replicates Article 4f of Directive 2006/114). 123 Ibid regulation 4i (replicates with Article 4g of Directive 2006/114). 124 Ohly & Spence, supra note 2, p.59. 125 Consumer Protection from Unfair Trading Regulations 2008 implements Directive

2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business to consumer commercial practice in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council O.J L- 149, 11/06/2005.

A Comparative Study of Comparative Advertising in Vietnamese and English law

28

ing action can include false product information or deceptive presentation.126 Mis-leading actions also cover any marketing of a product (including comparative adver-tising) which creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor; or involve any failure by a trader to comply with a commitment contained in a code of conduct which the trader has undertaken to comply with.127 According to regulation 6, misleading omissions include omit-ting128 or hiding material information;129 or providing material information in a man-ner which is unclear, unintelligible, ambiguous130or failure to identify commercial intent.131 Nevertheless, to verify whether a comparative advertisement is misleading is not always easy. Some questions concerning the interpretation of the provisions related to misleading have arisen. In particular, it has been asked whether a comparison that does not list all relevant aspects is misleading for that reason alone. According to some commentators, as a matter of principle, it is not misleading for a comparison not to list all relevant aspects132. Regulation 4d of BPRs133 indicates that the charac-teristics compared must be representative, so only in exceptional cases can the selec-tion of characteristics be so arbitrary that the overall impression is misleading. So, there is no obligation to be complete. The question has also been discussed by the ECJ in Pippig v. Hartlauer.134 This case arose after Hartlauer ran an advertising cam-paign in which leaflets directly compared Pippig’s prices for frames with Zeiss lenses with Hartlauer’s prices in respect of the same brand of frames but with Op-timed lenses. In addition to leaflets, Harlauer also advertised on television and in

126 CPRs 2008, SI 2008/1277, Regulation 5, paragraph 2. 127 Ibid, Regulation 5, paragraph 3. 128 Ibid, Regulation 6.1(a). 129 Ibid, Regulation 6.1(b) “Material information” means: (a) the information which the aver-

age consumer needs, according to the context, to take an informed transactional decision; and (b) any information requirement which applies in relation to a commercial communication as a result of a Community obligation.

130 Ibid, Regulation 5.1(c) 131 Ibid, Regulation 5.1(d) 132 Frauke Henning- Bodewig, Unfair Competition Law, Kluwer Law International Publishing

2006, p.43. 133 Replicates Article 4c Dir. 2006/114. This regulation stipulates that comparative advertising

must compares one or more material, relevent, verifiable and representative features of those products, which may include price.

134 Case C-44/01 Pippig Augenoptik [2003] ECR I-3095.

Fel! Använd fliken Start om du vill tillämpa Heading 1 för texten som ska visas här.

29

radio broadcasts. These advertisements featured the same price comparison but did not state that the lenses were different brands and (on television) showed a Pippig shop front and the company logo. This also raised the question whether the comparison of the price of a brand-name product with the price of a no-name product of equivalent quality is permitted where the name of the manufacturer is not indicated. The ECJ stated that in the context of comparative advertising, where there is compliance with the conditions set out in Article 3a(1) of Directive 84/450 on misleading and comparative advertising, as amended by Directive 97/55135, an advertiser is able to use the trade mark of a competitor's products.136 However, the ECJ also noted that the omission of a better known brand name could, in certain circumstances, be misleading. This occurs when the brand name of the products may significantly affect the buyer’s choice, the comparison concerns rival products and the extent to which the respective brand names are known differs significantly137. Nevertheless, the ECJ did not state that the comparative advertisement in this case violated the required conditions . It was up to the national court having regard to all the relevant factors of the case which is brought before it, to decide whether the conditions for lawful comparative advertising are met, taking into account the presumed expectations of an average consumer who is reasonably well informed and reasonably observant and circumspect.138

In addition, an advertisement which compares the general price level based on a basket of consumables selected from goods sold by various competitors can be con-sidered misleading. The case of Lidl Belgium GmbH & Co KG v Etablissementen Franz Colruyt NV139 has provided some clarification of this issue. In this case, Lidl and Colruyt each operated a chain of stores that sold basic consumables. Colruyt launched an advertising campaign based on a comparison of his prices with those of his competitors using two separate types of comparative advertising. In the first type, he sent his customers a leaflet in which he compared the general level of the prices charged by him and his competitors in respect of a wide range of products. He used the comparison to estimate the amount of money that consumers could save annually

135 Now, it is Directive 2006/114, Article 4. 136 Case C-44/01 supra note 134, paragraph 49. 137 Ibid, paragraph 53. 138 Ibid paragraph 55. The Austrian Court has claimed that the comparative advertising in this

case is misleading and thus illegal since lenses plays an important role in buying eyeglasses. Therefore, a comparison which does not point out that the glasses have different lenses is mis-leading.

139 Case C-365/04 Lidl [2006] E.C.R.I- 8501.

A Comparative Study of Comparative Advertising in Vietnamese and English law

30

by making all their purchases from him. The comparison related to both branded and unbranded products and the competitors were divided into two general groups, namely supermarkets and hard discount stores. The leaflet did not specify the general level of prices charged by each competitor. It only contained a collective reference to a range of amounts that could be saved by shopping at the advertiser rather than at any other supermarket and hard discount store. Secondly, he announced he had re-cently launched a line of basic consumables which were cheaper than any other com-parable product sold on the market. These products were properly labelled so that consumers could identify them easily and distinguish them from all other similar goods sold by the advertiser.

To decide whether the advertisement was misleading, it is essential to take into account the information contained in the advertisement and all its relevant features. An omission may make an advertisement misleading, especially when it seeks to conceal a fact that would have deterred a significant number of consumers from mak-ing a purchase.140 Thus, comparative advertising related to a general level of prices may be misleading in any one of three ways. First, if it leads consumers to believe that the comparison relates to all products sold by the advertiser rather than just the sample of them selected. Secondly, if the advertisement fails to identify the precise details of the comparison thereby creating the impression that all the products sold by the advertiser are cheaper than those of his competitors. Finally, if the advertisement contains a collective reference to a range of amounts that may be saved by consum-ers making their purchases from the advertiser without specifying individually the general level of the prices charged by each of his competitors.141 In short, the first and most important condition for a comparative advertisement to be lawful is that it is not misleading.

b It does not create confusion among traders Regulation 4(e) of BPRs prohibits any comparison that “creates confusion among trader, between the advertiser and a competitor or between the trade marks, trade names or other distinguishing marks or products of the advertiser and those of a competitor.” This condition was also specified in CMRs. However, some commenta-tors wonder whether this regulation is really necessary since it seems similar to the previous condition.142 In fact, both misleading advertising and advertising that cre-ates confusion are almost identical with regard to protecting both consumers and

140 Ibid at paragraph 80-82. 141 Ibid At paragraph 83 – 85. 142 Ohly & Spence supra note 2, p. 65.

Fel! Använd fliken Start om du vill tillämpa Heading 1 för texten som ska visas här.

31

competitors. Both of them can lead to wrong purchase decisions and can unfairly damage a competitor’s goodwill.143

Based on the language of Regulation 4e of BPRs, this condition refers only to comparisons creating confusion and not to comparisons that run the risk of creating such confusion. Pursuant to EU Trade mark Directives144 and TMA 1994 of UK, a mere risk of confusion is sufficient to establish trade mark infringement145. Bodewig reasoned that, as the ECJ held in the Toshiba decision,146 the rules on comparative advertising are to be construed in such a way that they take account of the purpose of trademark law (and vice versa). It is generally assumed that terms that are used iden-tically in both directive - for instance the likelihood of confusion - are to be inter-preted in the same way. The abstract likelihood of confusion is sufficient and there is no need for there to have been actual confusion147.

This has also been clearly explained in the O2 case.148 Hutchison 3G (“H3G”) ran a series of television advertisements comparing H3G’s mobile telephone “pay as you go” services with those of its major UK competitors, including O2. The advertise-ment in question made a price comparison between O2’s and H3G’s services. In do-ing so, the advertisement featured bubbles similar to those registered as trade marks by O2. In its judgement, the ECJ confirmed that it was apparent from Article 3a(1)(d) of Directive 84/450 that comparative advertising is not permitted if there is a likelihood of confusion between the advertiser and a competitor or between the advertiser’s trade marks, goods or services and those of a competitor149. In order to determine whether the use of a sign identical or similar to a registered mark creates a likelihood of confusion, it is necessary to consider the following four conditions150. Firstly, that use must be in the course of trade. Secondly, it must be without the consent of the proprietor of the mark. Thirdly, it must be in respect of goods or

143 Article 6(2) a of the Directive 2005/29/EC, O.J L- 149, 11/06/2005. 144 Directive 89/104/EEC of 21.12.1988 approximate the laws of the Member States relating

to trade-marks, (OJ L 40, 11.2.1989, at 1), Directive as last amended by Decision 92/10/EEC (OJ L 6, 11.1.1992, at 35) and Directive 2008/95/EC of 22.10.2008 repeals Directive 89/104/EEC.

145 See article 5(1)(b) of The Trademarks Directive implemented as s.10(2) of the Trademark Act 1994.

146 Case C- 112/99 Toshiba supra note 80. 147 Henning- Bodewig, supra note 132, p.47.

148 Case C-533/06 O2 Holdings Limited v.Hutchison 3G UK Limited [2008] not yet reported.

149 Ibid, paragraph 55 of the judgement. 150 Ibid, paragraph 57 of the judgement.

A Comparative Study of Comparative Advertising in Vietnamese and English law

32

services which are identical with, or similar to, those for which the mark is registered. Finally, it must affect or be liable to affect the essential function of the trade mark by reason of a likelihood of confusion on the part of the public. The fact that there was a risk that the public might believe that the goods or services in question come from the same undertaking or from economically-linked undertakings

constitutes a likelihood of confusion. In this case, the use of bubble images similar to the bubble trade marks did not give rise to a likelihood of confusion on the part of consumers. The advertisement, as a whole, was not misleading and, in particular, did not suggest that there was any form of commercial link between O2 and O2 (UK) on the one hand, and H3G, on the other151. Generally, only if a comparative advertisement gives rise to a risk of confusion will it be considered unlawful.

c. It does not discredit or denigrate the trade marks, trade names, other distinguishing marks, products, activities or circumstances of a competitor Discrediting is a milder form of denigration and since both are covered there is no need for further distinctions. Nevertheless, not all of comparative advertising which discredit the trade marks or trade names of a competitor always constitutes discredit-ing within the meaning of this provision since any critical comparative advertising involves a certain discrediting of the competitor or his products.152 If this were en-tirely prohibited, the intended liberalisation of comparative advertising would not be achieved. Therefore, only in cases where advertising unnecessarily discredits or denigrates the trade marks, trade names, products or activities of a competitor, should it be considered unlawful. In particular, if comparative advertising emphasises the benefits of its own goods or service and reasonably shows the disadvantages of rival product, this advertising is always permissible153. On the other hand, that compara-tive advertising only focuses on negative aspects of the competitor or his product is not acceptable. Discrediting can also result from an inappropriate and aggressive tone, an unobjective representation or valuation or even a unspecific, global rejec-tion.

Turning back to Pippig Augenoptik v Haurlter,154 we should consider whether a price comparison in which the products are chosen in such a way as to obtain a price difference greater than the average price difference and/or the comparisons are fre-

151 Ibid, paragraph 63 of the judgement. 152Henning-Bodewig, supra note 132, p.47, also see at

http://www.asa.org.uk/cap/advice_online/advice_online_database/Show+Entry.htm?advice_online_id=62.

153 Ibid. 154 Case C-44/01 Pippig Augenoptik, supra note 134.

Fel! Använd fliken Start om du vill tillämpa Heading 1 för texten som ska visas här.

33

quently repeated, creating the impression that the competitor's prices are excessive entails discrediting the competitor. The ECJ stated that comparing rival offers, par-ticularly regarding price, is of the very nature of comparative advertising. Comparing prices cannot in itself entail the discrediting or denigration of a competitor who charges higher prices.155 The ECJ also stated that the number of times the compari-son is made falls within the exercise of the advertiser’s economic freedom and that any obligation to restrict each price comparison to the average prices of the products offered by the advertiser and those of rival products would be contrary to the objec-tives of the Community legislation.156 It also referred to the second recital in the pre-amble of Directive 97/55 which states that comparative advertising must help dem-onstrate objectively the merits of the various comparable products. Such objectivity implies that the persons to whom the advertising is addressed are capable of knowing the actual price differences between the products compared and not merely the aver-age difference between the advertiser's prices and those of its competitors.157 In short, discrediting or denigrating the trade marks, trade names, other distinguishing marks, products, activities or circumstances of a competitor is still prohibited in an otherwise permissible comparative advertisement. The meaning of discredit is clari-fied by putting it in the context of the comparative advertising directive, in particular the public’s interest in information.

d It does not take unfair advantages of the reputation of a trade mark, trade name or other distinguishing marks of a competitor or of the designation of origin of competing products The provision seems to be tailored to prevent advertisers from establishing an unfair connection between the advertiser’s own (less famous or less highly-regarded) prod-uct and a competing product known by consumers under a prestigious trade-mark. However, not all advertising of inexpensive (“no name”) products which expressly or implicitly claim to be equivalent to a prestigious or well-known branded product is considered as unfair exploitation of the reputation of this famous trade mark or trade name158. In positive comparative advertising, referring to another’s reputation such as “X is just as good as Y” is common. In the L’Oreal case,159 Lord Justice Jacob160 stated that “Clearly the comparison list takes advantage of the reputation of the origi-

155 Ibid paragraph 80. 156 Ibid paragraph 81. 157 Ibid paragraph 82. 158 Henning - Bodewig, supra note 132, p.48.

159 Case L'Oreal SA and Others v. Bellure NV and Others [2007] EWCA Civ, paragraph 64. 160 He is a Lord justice of the Court of Appeal, Civil Division in England and Wales.

A Comparative Study of Comparative Advertising in Vietnamese and English law

34

nal fine fragrances. But does it take "unfair advantage” of the reputation of the origi-nal?” Virtually any comparison by a merchant of his product with a well-known product on the market will to some degree take advantage of the reputation of that product. The wording of this provision makes this clear in that the advantage must be “unfair”. Thus, the reference must be accompanied by “particular circumstances” for the transfer of the reputation of a sign to another to be regarded as unfair, for instance an excessive emphasis of the well-known rival product.161 According to Ohly & Spence, this provision may be operative in a factual comparison between products in a context where consumer choice is usually based upon image associations rather than objective, verifiable and material criteria. In particular, the provision may pro-hibit claims concerning the equivalence of generic and luxury goods. It seems to be written, indeed, with the very particular situation of luxury goods in mind.162 The case of L’Oréal v Bellure is an illustration of this. This case arose from the fact that a Dubai perfume company named Bellure sold low-value fragrances that it claimed smelled similar to L'Oreal perfumes and marketed the products on this basis, using packaging that 'winked at' the relevant L'Oreal designs, and published comparison charts that listed particular L'Oreal perfumes. L'Oreal sued for infringement of its trademarks and “passing off”, claiming that Bellure's marketing and packaging of “smile-alike” perfumes in this way took unfair advantage of its own product names, packaging and brand image. The High Court163 found that the defendants' use of similar bottles and packaging did take unfair advantage of the character and reputation of the packaging marks be-cause the extent of the similarity was deliberate; the L'Oréal fragrances chosen as comparators were well-promoted brands that were extensively advertised, and would not have been chosen if they were not good sellers164. The degree of similarity in packaging enabled the defendants to charge more for their perfume range than for other smell-alike perfumes165. There was evidence that the smell-alike perfumes benefited from the advertising of L'Oréal's premium brands, and sold because of the reputation of the originals. So the court held that the packaging for the perfume made and sold by the defendants was sufficiently similar to L'Oreal's established brands to create an association in the mind of the average consumer which affected their eco-nomic behaviour and that the comparison lists also constituted trade mark infringe-

161 Henning- Bodewig, supra note 132, p.48. 162 Ohly & Spence, supra note 2, p.85. 163 Case L'Oreal SA and Others v. Bellure NV and Others [2006] EWHC 2355 (Ch). 164 Ibid, paragraph 151(ii). 165 Ibid, paragraph 151(iii, iv).

Fel! Använd fliken Start om du vill tillämpa Heading 1 för texten som ska visas här.

35

ment and could not benefit from the honest practices’ defence under the TMA 1994166. The defendants' signs and the comparison table took unfair advantage of the character or reputation of L’Oreal’s registered trade marks.

What then happens if a comparative advertiser does not use a registered trade mark but does use a system of order numbers for its product which is already well known in trade circles. Is he taking unfair advantage of the reputation of that distin-guishing mark within the meaning of this provision? This happened in the case Sie-mens v VIPA.167 VIPA used an identification system virtually identical to that used by Siemens in advertising its products, the only difference being a replacement of the first non-essential group of characters with the acronym "VIPA". For example, a Siemens product carrying the order number 6ES5 928-3UB21 would become VIPA 928-3UB21. In addition, in their catalogue, VIPA expressly stated that their order numbers corresponded to those of Siemens.

In order to determine whether VIPA was taking unfair advantage of the reputa-tion of Siemens’ distinguishing mark, the benefit of comparative advertising to consumers and the benefit an advertiser derives from comparative advertising must necessarily be taken into account.168 By adopting the core element of the Siemens order number system, VIPA was informing the public that the two products in ques-tion had equivalent technical features. There was, therefore, a lawful comparison of the material, relevant, verifiable and representative features of the goods within the meaning of this provision.169 It was necessary, however, to determine whether by adopting that element VIPA could cause the public, at whom their advertising was directed, to associate the reputation of that manufacturer's products with the products distributed by that supplier. In this respect, the court noted that the public in the mar-ket for these products would be specialist consumers, and therefore more likely to pay close attention to the product they were purchasing and much less likely to asso-ciate the reputation of the VIPA products with that of products distributed by Sie-mens.170 Additionally, the fact that consumers needed the core element of the product code to utilise the control system at all meant that if VIPA didn't include this core element in its own product code, the consumer would be required to undertake an onerous cross-referencing task with each VIPA product purchased, which would

166 Ibid, paragraph 149. 167 Case C-59/05 Siemens AG v VIPA Gesellschaft für Visualisierung und Prozeßautomatis-

ierung mbH [2006] ECR I- 02147. 168 Ibid, paragraph 24. 169 Ibid, paragraph 17 170 Ibid, paragraph 19.

A Comparative Study of Comparative Advertising in Vietnamese and English law

36

clearly be disadvantageous to the consumer. On this basis, and in these circum-stances, by using in its catalogues the core element of a manufacturer's distinguishing mark which was known in specialist circles, the competing supplier did not take un-fair advantage of the reputation of the distinguishing mark171.

e it does not present goods or services as imitations or replicas of goods or services bearing a protected trademark or trade name This provision provides a certain degree of protection against comparison to the manufacturers of the original goods (e.g. pharmaceutical products, perfumes) who, often cannot take action against imitations after the expiry of relevant industrial property rights. Thus, for instance, a pharmaceutical product may not be described as being identical with an original pharmaceutical product. Pursuant to this provision, promoting generic pharmaceutical products might be regarded as presenting the products as imitations or replicas of the branded drugs once their patent has lapsed.172 An example of this would be a statement that claims the product to be “the same” as the original product.

Turning back to the case involving L’Oreal and Bellure173, did the message con-veyed in the context of the comparisons that the defendants' product smells like the well-known fragrance presents the defendants' goods as being an "imitation or rep-lica” of the “original” fragrance? The defendant submitted that this condition was confined to products like counterfeit Rolex watches on the grounds that "present goods or services as imitations or replicas” is a composite phrase indicating just that sort of thing and no more. The claimant submitted that saying a perfume smells like a well-known brand is indeed "presenting it” as an imitation of it. This may be right, but if so "presenting goods as an "imitation” will have a very wide, possibly overpro-tective, meaning. Does then this expression cover the case where, without in any way causing confusion or deception, a party truthfully says that his product has a major characteristic (smell) like that of a well-known product which is protected by a trade mark? This issue will only be resolved interpreted when the ECJ gives its judgement in the case.

3.1.1.2 Positive conditions

In addition to these negative conditions, Comparative advertising must meet some positive requirements. These positive requirements are that the comparison is of

171 Ibid, paragraph 27. 172 Morasch, supra note 89, p.57. 173 Case C-487/07 L'Oreal SA and Others v. Bellure NV and Others (This case has not been

judged by the ECJ)

Fel! Använd fliken Start om du vill tillämpa Heading 1 för texten som ska visas här.

37

product for the same needs or purposes174, objectively compares one or more mate-rial, relevant, verifiable and representative features175, and compares products with a designation of origin to products with the same designation176.

a. It compares product meeting the same needs or intended for the same purpose

Comparative Advertising is only permitted if it compares goods or services meeting the same needs or intended for the same purpose177. This does not require that the goods or service be identical. Accordingly, the products compared should display a sufficient degree of interchangeability for the consumer178. In the case of Lidl Belgium v Colruyt,179 the comparative advertising related collectively to selections of basic consumables sold by competing chains of stores and this would be permitted provided that they consisted of individual products which satisfied the requirement of interchangeability when viewed in pairs.180 Indeed, the choice as to the number of comparisons which the advertiser wishes to make between the products that he is offering and those offered by his competitors falls within the exercise of economic freedom.181 This freedom also extends to the ability to make a comparison relating to the comparable product ranges sold by the advertiser and his competitors.182 In the mass distribution sector, comparative information relating to the general level of prices charged by competing chains of stores is liable to prove more useful to con-sumers than comparative information limited to the prices of individual products.183

174 The BPRs, supra note 38, regulation 4 (c) 175 Ibid. 176 Ibid regulation 4d. 177 Ibid regulation 4c.

178 “Substitutable product” from the viewpoint of the consumer. The definition equals the definition of the relevant product market under Article 85 EC (although the purposes of the two provisions are different) and this market is defined in accordance with the “reasonable inter-changeability test”. The relevant product market will encompass all products that are substitutable in demand and supply, and the current sales of those products will be aggregated so as to give the total value or volume of the market, see Commission Notice on the definition of relevant market for the purposes of Community Competition Law, OJ. C372/5.

179 Case C- 365/04 Lidl, supra note 139.

180 Ibid, paragraph 36- 39. 181 Ibid, paragraph 29, also see Case C-44/01 Pippig supra note 134 paragraph 81. 182 Ibid, pararaph 29-30. 183 Ibid, at paragraph 35.

A Comparative Study of Comparative Advertising in Vietnamese and English law

38

Nevertheless, it should be remembered that the criteria for establishing the exis-tence of a competitive relationship are not identical to those for determining whether a comparison fulfils this provision. This provision requires an individual and specific assessment of the products which are specifically the subject of the comparison and a decision whether there is a real possibility of substitution.184In general, this provision does not require that the products or services subject to comparison should be identical or similar in nature or that they should belong to the same commodity group, but does require that from the perspective of consumers the goods are interchangeable.

b. It objectively compares one or more material, relevent, verifiable and representative features of those products, which may include price

This condition lays down two types of requirement relating to the objectivity of the comparison. Firstly, it requires that the feature of the product in respect of which the comparison was made is material, relevant, verifiable and representative and this helps ensure that the comparison is objective. Secondly, the feature has to be com-pared objectively. The objectivity criterion is to preclude comparisons that result from subjective assessments rather than from objective findings. In particular, a comparison of purely subjective preference such as “I prefer X to Y” is prohibited because such a comparison is neither objective nor verifiable185. However, some commentators state that interpreting the prohibition this way would lead to the result that a Directive which aims at the liberalisation of comparative advertising, would be stricter than the prior national law of almost all the member states. In addition the provision requires that the comparison must concern features of goods or services (or their price). According to this, personal comparisons such as “X is a foreigner I am not” are prohibited. But the term “features of goods or services”, if construed liter-ally, would preclude comparing company related details such as turnover, the prod-uct’s fame or the media’s audience penetration. Possibly, their inclusion could be justified by way of the broad interpretation of the concept of comparative advertising in the Toshiba case186 and the information needs of the addressee, to whom such ad-vertising is indeed presenting alternatives. Returning to the case involving Lidl and Coruyt187, the objectivity criterion was satisfied without any need to list the goods

184 Case C-381/05 Delandtsheer, supra note 86, paragraph 47. 185 Henning - Bodewig, supra note 132, p.47. 186 Case C-112/99 Toshiba, supra note 80, paragraph 28. 187 Case C-365/04 Lidl, supra note 139.

Fel! Använd fliken Start om du vill tillämpa Heading 1 för texten som ska visas här.

39

compared and their respective prices if the claimed difference in the general price level was indeed based on actual price differences between comparable products. 188

In addition, the features compared must also be “material, relevant and representa-tive.” This ultimately amounts to the same thing, the aim being to prevent the crea-tion of a distorted overall impression by selecting irrelevant secondary features that are as a rule of no relevance for the purchaser. To decide what is a material feature depends strongly on the type of product. While, for instance, the packaging of most products is of secondary importance, for certain products (perfume, sweets) it may well be a material, relevant or representative feature.

Closely related to the requirement of objectivity is the need for verifiability. Veri-fiability means first of all that the comparison involves allegations of fact, since only these can be checked for objective justification. The decisive factor is that the ad-dressee could check the features compared without having to make an unreasonable effort. In the Lidl Belgium case the comparison of the general price level could sat-isfy the verifiability requirement189 provided that the goods compared were capable of being individually and specifically identified - and then priced - on the basis of the information contained in the advertisement.

Another issue is whether verifiability requires that consumers should in fact be in a position to determine for themselves the accuracy of the statements made in a com-parative advertising. It is hard to answer this based on the strict language of the pro-vision. It should then be interpreted in the light of the objective of consumer protec-tion. Seen from this perspective, it is not enough that consumers can obtain proof of the factual accuracy of the claim from the advertiser in the course of administrative and judicial proceedings The advertisement should indicate where and how they may get access to the details underlying the comparison with a view to verifying it.190 In case the verification would require exceptional skills, it suffices that consumers are given enough information to allows them to have it carried out by a third party.191

c. For products with a designation of origin, it relates in each case to products with the same designation

The provision targets comparisons between products carrying a designation of origin, stating that if products with a designation of origin are compared, the com-

188 Ibid, paragraph 50 - 54. 189 Ibid, paragraph 24. 190 Ibid, paragraph 27. 191 Ibid, paragraph 28.

A Comparative Study of Comparative Advertising in Vietnamese and English law

40

parison must relate to products with the same designation192. It seems that this provi-sion’s scope goes well beyond the requirements which asks for a comparison be-tween substitutable items. It suggests that products with a designation of origin are practically excluded from being the object of a comparative advertisement which seems to assign an illegitimate privilege to a selected group of producers. To take the example of the winegrowing industry why should a producer from the Spanish Rioja region not be entitled to compare his product to his French rival from Bordeaux193 even though the comparison might have provided consumers with useful information and assist rational consumer choice. Moreover, regulation 4d of BPRs would have been sufficient to ensure that the comparison does not take unfair advantage of a competitor’s reputation. This privilege afforded to a certain group of producers seems incompatible with the other provisions we have been reviewing.194

The provision was finally interpreted in a manner linked to the other provisions thanks to the judgement of the ECJ in the case De Landtsheer v. Comité Interprofes-sionnel du Vin de Champagne.195 The ECJ affirmed that for products without a des-ignation of origin, a comparison relating to products with a designation of origin is permitted if this comparative advertising satisfies all the other conditions. For exam-ple it must not take unfair advantage of the reputation of a trade mark, trade name or other distinguishing marks of a competitor or of the designation of origin of compet-ing products. It would be unwarranted and unjustified if protection of designations of origin would have the effect of prohibiting comparisons between products with and without a designation of origin.

3.1.2 General remarks As analyzed above, Comparative Advertising in English law is mainly regulated

by BPRs but is also covered by the 1994 TMA when advertisers refer to the trade-marks of competitor. In addition, the law of passing off and injurious falsehood may be applied in cases satisfying certain particular conditions. Although BPRs is consid-ered as the most important law on comparative advertising, most of the recent cases related to claims of malicious falsehood and trade mark infringement. In fact, the use of a competitor’s trade marks or copyrights to identify him or his product is almost inevitable. If BPRs was intended to render particular types of comparative advertis-

192 The BPRs, supra note 38, regulation 4g. 193 Morasch, supra note 89, p.54. 194 Ohly & Spence, supra note 2, p.69. 195 Case 381/05 Delandtsheer, supra note 86.

Fel! Använd fliken Start om du vill tillämpa Heading 1 för texten som ska visas här.

41

ing lawful, the relationship between trade marks, copyright and the advertising regu-lation ought to have been addressed more squarely.

In the O2 case,196 although the ECJ has not yet given its judgement, both the Ad-vocate General in his opinion and Lord Justice Jacob in his referral to the ECJ, were clear in their view that trade mark law should not have any role in the assessment of the legitimacy of comparative advertising, an area separately and specifically pro-vided for by Community law. If this were upheld, the rights owners would only be able to rely on the OFT and TSS to take action in such circumstances. Fortunately, the ECJ does not follow the Advocate General’s opinion to the problem of the inter-relationship of the Trade Marks Directive and the Comparative Advertising Direc-tive. The proprietor of a registered trade mark is not entitled to prevent the use by a third party of a sign identical with, or similar to, his mark, in a comparative adver-tisement which satisfies all the conditions laid down in Article 3a(1) of Directive 84/450. But where the conditions197of Article 5(1)(b) of Directive 89/104 preventing the use of a sign identical with, or similar to, a registered trade mark are met, no comparative advertising can satisfy the condition laid down in directive 84/450198. That said, the proprietor of a registered trade mark is still not entitled to prevent the use by a third party, in a comparative advertisement, of a sign similar to that mark in relation to goods or services identical with, or similar to, those for which that mark was registered where such use does not give rise to a likelihood of confusion on the part of the public, and that is so irrespective of whether or not the comparative advertisement satisfies all the conditions laid down in Article 3a of Directive.199

3.2 Lawful comparative advertising in Vietnamese law

3.2.1 Conditions for comparative advertising to be lawful under Vietnamese law

Comparative advertising is also a type of advertising. Thus, it must be in conformity with the conditions governing the legitimacy of advertising in general.

196 Case C-533/06 O2, supra note 148. 197 According to Article 5(1)(b) of Directive 89/104, the proprietor shall be entitled to prevent

all third parties not having his consent from using in the course of trade any sign where, because of its identity with, or similarity to, the trade mark and the identity or similarity of the goods or services covered by the trade mark and the sign, there exists a likelihood of confusion on the part of the public, which includes the likelihood of association between the sign and the trade mark.

198 Case C- 533/06 O2, supra note 148, operative part of the judgment, paragraph 1. 199 Ibid, paragraph 2.

A Comparative Study of Comparative Advertising in Vietnamese and English law

42

3.2.1.1 General conditions

There are already prohibitions on advertisements disclosing State secrets and adver-tisements of goods and services where the State prohibits or restricts their use or pro-hibits their advertising.200 But to be lawful, advertising must satisfy the further condi-tions below.

a. It is not false or misleading Pursuant to the Law on Competition as well as the Law on Commerce, advertising should not provide false or misleading information to customers about one of the following matters : price, quantity, quality, usage, design, type, packaging, date of manufacture, use expiry, origin of goods, manufacturer, place of manufacture, proc-essor or place of processing; manner of use, method of service, warranty period; or other false or misleading information.201 In addition, the Ordinance on Advertising also prohibits misleading advertising.202 Decree 24 also prohibits making advertise-ments which defame, compare or cause confusion about other product, business or service-providing establishments.203 Information about price, quantity, quality, usage and design plays an important role in customer’s choices since if information about these is incorrect, consumer choice will be adversely affected. In practice, advertising that misleads customers occurs regularly. For example, the Xuan Loc Tho Company stated that “American goods are not as expensive as you thought.” Any customer reading this advertisement would think the products were made in the United States and had a reasonable price. However, when the consumers bought the products referred to, they find out they were not made in America. Consumers complained and the company tried to claim that the word they used in their advertisement did not refer to the origin of the prod-ucts.204 This advertising had thus provided misleading information about the origin of products. In the KymDan case205, the defendants claimed that the KymDan adver-tisement mislead customers about the quality of their mattress products. The Su-

200 See Law on Commerce 2005, supra note 55, Article 109(1), (2), (3). 201 Ibid, Article 109(7), also see Law on Competition, supra note 98, Article 45(3). 202 See Ordinance on Advertising, supra note 51, Article 5(4). 203 See Decree No.24, supra note 52, Article 3(7).

204 http://tintuc.ethitruong.vn/Home/thitruong/msvcg/2007/10/16684.aspx. The whole sen-tence in Vietnamese is “Hang My khong dat nhu ban nghi”. The word “My” in Vietnamese can be understood in different ways. It can refer to the United States, on the other, it can combine with another word to form another meaning. In this case the company has explained that “My” they use in this advertising is “My thuat” (Art) not referring to the United States.

205 Case Kymdan v Van Thanh, Uu Viet, supra note 56.

Fel! Använd fliken Start om du vill tillämpa Heading 1 för texten som ska visas här.

43

preme People Court agreed that the advertising which provided inappropriate infor-mation misled consumers about the quality, features and usage of spring and poly-urethane foam mattresses. In advertising, the information provided by traders must be clear and truthful. Misleading advertising which leads customers to erroneous or false notions adversely affecting their choices is unlawful.

b. It does not imitate another advertising product in order to mislead customers

The Law on Competition has prohibited imitating another advertising product in or-der to mislead customers.206 Advertising contains information in the form of images, actions, sounds, spoken or written languages, symbols, colours and lighting contain-ing advertising details.207 Imitating an advertising product may be interpreted as us-ing images, sounds, colours, symbols etc that are similar to those in the advertise-ments of other undertakings thus creating confusion about the products or about the relationship between the traders. Nevertheless, the law does not specify the degree of imitation. The relevant authorities will have to determine this based on the case, the market and the specific circumstances.

c. It does not denigrate or defame other traders The Ordinance on advertising prohibits advertising which offend the honour and rep-utation of, or infringes the lawful rights and interests of organizations and individu-als.208 In addition, the Law on Competition provides that enterprises shall be prohi-bited from defaming another enterprise by any direct or indirect act of providing un-truthful information which adversely impacts on the reputation, financial position or business activities of such other enterprise.209 The denigration or defamation of other traders usually contains certain basic fea-tures.210 The essence of the infringement is providing false information which then denigrates or defames other traders. The information may be related to the quality, prestige, status, personal characteristics or business activities of traders; it must also be untruthful. Such advertising results in adverse influence on the prestige, activities and image of traders. The bad influences can be demonstrated statistically. For ex-ample, it might be possible to show an extraordinary decrease in turnover after the

206 Law on Competition, supra note 98, Article 45(2). 207 Law on Commerce, supra note 55, Article 105. 208 Ordinance on Advertising, supra note 51, Article 5(6). 209 Law on Competition, supra note 98, Article 43. 210 Le Danh Vinh, Hoang Xuan Bac, Nguyen Ngoc Son, supra note 102, p.152.

A Comparative Study of Comparative Advertising in Vietnamese and English law

44

advertising was published. Advertising which denigrates or defames traders must be prohibited precisely because of its negative effects.

3.2.1.2 Special conditions

Besides these above mentioned conditions, the Law on Competition stipulates that advertisers must not directly compare their own goods and services with those of the same type of another business entity.211 The Law on commerce also prohibits adver-tisements which use the method of direct comparison of the production and business operations of the entity being advertised with the production and business operations of another business entity.212 These provisions state that only such direct comparative advertising, not all kinds of comparative advertising, is prohibited. Under the prior provisions on advertising, comparative advertising was indeed prohibited.213 In the fourteenth draft of the Law on Competition, Comparative advertising was still pro-hibited.214 However, in its fifteenth draft and the Law on Competition, only direct comparative advertising was banned.215 Based on the use of the new term “direct comparative advertising” and comparing this to the previous law, it was concluded that “indirect comparative advertising” is no longer prohibited.216 Thus, in addition to the general conditions, advertisers need only not directly compare their goods or ser-vices with those of competitors. There is no legal definition of direct comparative advertising and the term can be interpreted in different ways. It could be an adver-tisement in which the name or brand name of a competitor or its products are clearly stated. If interpreted in this way, advertisements which uses general comparative information and, say, compares the bleaching power of Tide with normal detergent or the smell of Downy with that of other silk fragrant water but does not specify the name of the competitor or its products are legal. In addition, an advertisement is a direct comparative one if customers are able to recognize the competitor or the prod-ucts referred to in it even though neither their name nor that of the products are men-tioned.

211 The Law on Competition 2004, supra note 98, Article 45(1). 212 The Law on Commerce 2005, supra note 55, Article 109(6). 213 The Law on Commerce 1997, supra note 95, Article 192(2), also see Ordinance on Adver-

tising, supra note 51, Article 5 and Decree No. 24 supra note 52 Article 3(7). 214 See the fourteenth draft of Competition law, Article 32(2). 215 The Law on Competition, supra note 98, Article 45(1). 216 See Phan Huy Hong, supra note 100, at p.44.

Fel! Använd fliken Start om du vill tillämpa Heading 1 för texten som ska visas här.

45

In the KymDan case, the Council of Judges of the Supreme People Court found that KymDan did not produce spring or poly-urethane foam mattresses but compared the quality of its products with these products. Although it did not specify the name of any competitors, its action violated the laws of advertising217. In its judgement, the Court did not say whether KymDan’s advertisement was direct or indirect since all comparative advertising was prohibited in the Commercial law 1997, which gov-erned the case.

Some consider that direct comparative advertising is advertising in which images, sign or words are used and this leads consumers to recognize the competing products and producers which the advertised products are being compared to.218 These are advertisements in which the advertisers claim the superiority of their product in comparison with other products but do not specify which other products are the basis of the comparison. But consider if it is claimed, in a detergent advertising that “Tide bleaches whiter”. There are no images of other detergents and no words mention to Omo or Viso or any other detergent. So, consumers could hardly say a comparison was being made between Tide and other kinds of detergent.219Yet, consumers may think that the other detergent on the market do not bleach clothes as white as Tide. Thus consumers effectively understand that is comparing Tide to all kinds of deter-gent in the market. Lacking a legal definition, it is difficult to determine whether this advertising is direct or indirect.

In order to support the prohibition of direct comparative advertisement, Commer-cial Law has a provision which prohibit advertisements of the business operation of the entity being advertised by using an advertising product which breaches intellec-tual property rights; or using the image of another organization or individual in an advertisement without the prior approval of such organization or individual.220.

217 This violated Article 192(3) and (5) of Law on Commerce 1997. 218 The ideas of Ms Dinh Thi My Loan, The head of the Competition Administration Depart-

ment, answer the question of the criteria business entities should use on to know whether their advertising violates the law. http://www.vnexpress.net/GL/Kinh-doanh/2005/06/3B9DF902/

219 Nguyen Thi Tram, Ap dung cac quy dinh cua Luat canh tranh ve quang cao so sanh, va mot so van de phat sinh trong thuc tien (Application of Competitive Law provision on compara-tive advertising, and some practical issue, Tap chi kiem sat (Prosecution Journal) No.9 ( 05/2007) pp. 48.

220 See Law on Commerce supra note 55, Article 109(8).

A Comparative Study of Comparative Advertising in Vietnamese and English law

46

3.2.2 General remarks In practice, advertisements claiming the superiority of their product - for example Omo saying it completely bleaches out all lubricant oil spots that other detergents can not - are commonplace without any interference from the state authorities. Per-haps, the authorities assume that they are indirect comparative advertisements. Moreover, Vietnamese undertakings seem unfamiliar with starting proceedings re-garding violative advertising even if their name or brand name is being used. For example, in an advertisement in Bac Kan and Binh Thuan’s newspapers, Viettel compared its telephone costs with those of the VNPT for the purpose of highlight its low cost. VNPT considered that Viettel had violated the rules on comparative adver-tising but it did not lay a complaint or start proceedings. Based on the current adver-tising laws and the actual practice of advertising, it is seen that Vietnamese law lacks rules to define direct comparative advertising. In addition, the conditions legitimising some comparative advertising are unclear and illogical. This can all have a bad affect on the competitive environment between undertakings.

3.3 Comparative remarks

Together with a definition of Comparative advertising, English law also provides conditions for determining whether a comparative advertisement is lawful or not. Unlike English law, Vietnamese law does not present any special conditions for comparative advertising except for the one rule that prohibits directly comparing the advertisers’ own goods and services with those of the same type of another enter-prise. Nevertheless, it is recognized that the general conditions for legal advertising in Vietnamese law are fairly similar to the negative conditions for lawful compara-tive advertising under English law. For example, both English law and Vietnamese law demand that comparative advertising not be false; should not mislead customers or traders; does not denigrate or defame competitors or the trade marks or trade names of a competitor. Nevertheless, some striking differences are found between the laws of the two countries. In English law, the definition of misleading advertising was defined in Regulation 3(2) of BPRs while it is not defined in Vietnamese law at all. According to English law, misleading advertising includes not only misleading acts or statements but also misleading omissions including omitting or hiding mate-rial information; or providing material information in a manner which is unclear, unintelligible or ambiguous; in Vietnamese law, misleading omissions are not men-tioned. In addition, an advertisement which breaches intellectual property rights; or uses the image of another organization without the prior approval of such organiza-

Fel! Använd fliken Start om du vill tillämpa Heading 1 för texten som ska visas här.

47

tion or individual is prohibited221 is prohibited in Vietnam. In English law, such use is permitted provided it satisfies the conditions that all comparative advertising must meet.

However, the most remarkable difference between English and Vietnamese law is the difference in the positive conditions and the special conditions applied to com-parative advertising. Vietnamese law stipulates that advertising which directly com-pares an advertiser’s goods and services with those of competitors is prohibited. This means that Vietnamese law just looks at the comparative reference to determine whether comparative advertising is lawful; if there is one, it is not. By contrast, Eng-lish law provides particular conditions, inter alia, that an advertisement must objec-tively compare one or more material, relevant, verifiable and representative features of the products compared, which may include price; meeting the same needs or being intended for the same purpose. English law has no need to make any distinction be-tween advertising which directly identifies competitors or the products of competi-tors and advertising which does this by implication only as this distinction is unnec-essary. On the other hand, although Vietnamese law looks at the mode of the com-parative reference to determine the legality of any comparative advertising, it does not define the terms “direct” and “indirect” comparative advertising even though it is necessary to do so to draw the boundary between lawful and unlawful comparative advertising.

However, if a comparative advertisement is direct but it objectively compares one or more material, relevant, verifiable and representative features of the products compared, it can help consumers to more product information and also enhance competition between the undertakings. So, the issue of comparative reference should not determine the legitimacy of comparative advertising. Comparative advertising is the right of a trader which originated in the right of freedom of speech and the right to do business. Thus, the Vietnamese legislator could refer to the kinds of specific conditions used by English law once adjusted to fit Vietnamese conditions and cir-cumstances. What Vietnamese law needs to do is to build up a legal framework for comparative advertising which is not based on the unhelpful issue of comparative reference but on these principles: accuracy, truthfulness, objectiveness, and verifi-ability.

221 Ibid

A Comparative Study of Comparative Advertising in Vietnamese and English law

48

4. Sanctions applied for unlawful comparative advertising

4.1 Sanctions applied for unlawful comparative advertis-ing in English law

Comparative advertising which is lawful may enhance fair competition between un-dertakings and provide useful information to consumers. Yet, if comparative adver-tising does not satisfy the legal conditions and is, in other words, unlawful, it may mislead traders and consumers, damage the reputation of competitors and affect con-sumer choice. Thus, it is necessary to set up sanctions to be applied to unlawful com-parative advertising.

4.1.1 The enforcement authorities in English law and prac-tice

The main means of dealing with comparative advertising disputes in the United Kingdom is through industry self-regulation222. The various industry codes form an extensive regulatory framework which complements the law in important respects. Under the CAP Code and the BCAP,223 ASA is the body that supervises and regu-lates advertisements in broadcast and non-broadcast media (for example print, post-ers, cinema, direct marketing and online, such as banner and pop-ups ads). ASA’s chief tasks are to promote and enforce high standards in marketing communications, to investigate complaints, to identify and resolve problems through its own research, to ensure that the system operates in the public interest and to act as the channel for communications with those who have an interest in marketing communication stan-dards. So, a trader or any other person can send his complaint on advertising to ASA, ASA will consider whether the advertising is compatible with the regulatory codes. If the complaint is upheld, ASA administers a range of sanctions against the offending advertiser.

222 Darren Fitzgerald, “Comparative Advertising in the United Kingdom”, 19 E.I.P.R. (1997),

pp.709-714, at 709. 223 According to the Communication Act 2003, Ofcom has a duty to handle and resolve com-

plaints about advertising content on radio and television, so from 2004, Ofcom has contracted out the regulation of broadcast advertising content to a self-regulatory system under the banner of the Advertising Standards Authority (ASA). Ofcom has passed all complaints it receives about broadcast advertising directly to ASA(B). Also see Memorandum of Understanding between Office of Communications (Ofcom) and the Advertising Standards Authority (Broadcast Lim-ited) “ASA”B, May 2004.

Fel! Använd fliken Start om du vill tillämpa Heading 1 för texten som ska visas här.

49

In addition to the self–regulation system regulated by ASA, the BPRs also pro-vides specific rules on comparative advertising. These regulations are specifically aimed at protecting a business that is a victim of certain types of unfair commercial practices. According to BPRs, the OFT and TSS224 have a duty to proceed against advertisers who violate these regulations. In exercising their powers, the enforcement authority shall have regard to all the interests involved, in particular the public inter-est and the desirability of encouraging the control, by self-regulatory bodies, of ad-vertisements225. The enforcement authority powers are used in practice only when ASA has been unable to deal adequately with a complaint under their self-regulatory systems.

Furthermore, the courts also have the power to give adjudications if OFT or TSS decides to bring the case to the High Court. In addition, as mentioned in part 1 and part 2, before the adoption of BPRs, comparative advertising was also regulated un-der the Trademark Act and tort law. So, where traders use the trademarks or trade names or other marks of a competitor in a comparative advertisement which is con-trary to honest practices in industrial or commercial matters; and without due cause takes unfair advantage of, or is detrimental to, the distinctive character or repute of the trade mark, the aggrieved party can make a claim in court. In addition to claiming trademark infringement, the plaintiff can base his case in passing off, injurious false-hood or defamation.

Generally, ASA is the enforcement authority under the self–regulatory system while the court and the OFT or TSS will be the enforcers under statute law.

4.1.2 Sanctions applied to unlawful comparative advertising 4.1.2.1 Disciplinary Sanctions226

ASA will consider whether an advertisement is compatible with the regulatory code. If the complaint is upheld, ASA administers a range of sanctions against the offend-ing advertiser. As a first step, the advertiser is asked to withdraw the advertisement or to amend it. If the advertiser refuses to comply, further sanctions can be applied. Firstly, ASA will publicize the name of offending advertiser on its website. Sec-ondly, the violation is brought to the attention of the relevant media associations, which, as a rule, will refuse to publish the disputed advertisement. Thirdly, the viola-tor will lose the trading privileges available through membership of advertising bod-

224 The BPRs, supra note 38, regulation 2 and regulation 13(2). 225 Ibid, regulation 13(4). 226 Sanctions applied to offending acts violating the self-regulation system are temporarily

called “disciplinary sanctions”.

A Comparative Study of Comparative Advertising in Vietnamese and English law

50

ies and, in exceptional cases, can be expelled from them. Fourthly, pre-publication vetting by ASA of all advertisements can be applied to an offender. This means that the ASA may require persistent offenders to have some or all of their marketing communications vetted by the CAP Copy Advice team until the ASA and CAP are satisfied that future communications will comply with the Code. Finally, ASA can refer the offender to the OFT who can then apply for an injunction.

4.1.2.2 Administrative Sanctions227

Where an enforcement authority considers that there has been or is likely to be a breach of the criteria for a lawful comparative advertisement, it can seek an under-taking that the marketing will be stopped from anyone responsible for commission-ing, preparing or disseminating it. If that is not given or is not honoured, the OFT can seek an injunction from the Court to prevent its further appearance. The court, in particular, the High Court may, on an application by the enforcement authority,, grant an injunction on such terms as it may think fit to secure compliance with the regulations. However, before granting an injunction the court shall have regard to all the interests involved and in particular the public interest. The court may also require any person against whom an injunction is granted to publish in such form and man-ner and to such extent as the court thinks appropriate for the purpose of eliminating any continuing effects of the advertising (a) the terms of the injunction; and (b) a corrective statement

4.1.2.3 Civil sanctions

The TMA 1994 prohibits the use of a mark in advertising which is identical to a reg-istered mark.228 Section 10 (6) provides an exception for comparative advertising where such use is ""for the purpose of identifying goods or services as those of the proprietor or a licensee". However, liability will still be imposed if anything done is contrary to honest practices in industrial or commercial matters; and without due cause takes unfair advantage of, or is detrimental to, the distinctive character or re-pute of the trade mark. Trademark law also provides some sanctions against the in-fringer.229 The most common remedy is injunctive relief230. Injunctive relief is usu-

227 Sanctions applied to the advertiser violated the BPRs. 228 ss.10(1), 10(4) (d), TMA 1994. This is the category of infringement which will most likely

apply where comparisons are being made: W.R. Cornish, Intellectual Property (1996), p. 625. 229 TMA 1994 s.14(2) The remedies available to a registered trade mark owner for trade mark

infringement are: (i) an injunction; (ii) the delivery up for destruction or the erasure of the mark from offending material229; and (iii) at the claimant’s option, damages or an account of profits.

230 Trademark Act s.14(2).

Fel! Använd fliken Start om du vill tillämpa Heading 1 för texten som ska visas här.

51

ally granted at the discretion of the court, which will weigh up all the factors which are relevant to the case before making an order. Relevant considerations may include the conduct of the successful claimant and the infringing defendant both before and after the infringement and whether the defendant is still trading at the time the order is made. Sometimes an injunction will be coupled with other relief, such as damages in respect of infringing acts which have already been performed. But an aggrieved party have to prove how he was damaged by, for example, giving evidence about his profits and the defendant’s profits. The actual damages which the aggrieved party has suffered, such as the sales it lost or the harm the infringing mark has caused to its reputation and goodwill, are often difficult to prove because the aggrieved party must show that it would not have suffered these losses but for the infringing action. Thus, rather than seeking actual damages, people often claim against the profits made by the other party as a result of its use of the infringing mark. Finally, the aggrieved party can also request that the court order the other party to destroy its infringing materials or deliver them to him.

In cases claiming in respect of passing off, injurious falsehood or defamation, the remedies applicable are (i) damages; (ii) an injunction; and (iii) a declaratory judg-ment. However, to prove a case in passing off is not an easy task, a plaintiff must show that (i) the products or services the plaintiff supplies to the public enjoy a par-ticular “goodwill” in that they are recognised in the market to be distinctively associ-ated with him, (ii) a misrepresentation which, it is reasonably foreseeable, will dam-age that goodwill, classically the misrepresentation that the defendant’s goods or services are those of the plaintiff and (iii) actual damage to the plaintiff. In practice, comparative advertising will not normally run the risk of passing off because the aim of such advertising is precisely to distinguish the goods or services of the advertiser from those of his competitor. Nevertheless, it is possible that a comparative adver-tisement might fail adequately to do so. One case in which this did happen was McDonald’s Hamburgers Ltd v. Burger King Ltd.231 In this case Burger King had advertised one of its hamburgers with the slogan, “it’s not just Big, Mac”. In this case, the court concluded that a majority of those at whom the advertisement was directed would assume that the “Big Mac” was available at Burger King as well. On this basis Burger King were found to have passed off their product as produced by McDonald’s.

In practice, the plaintiff in most cases related to comparative advertising usually claims for trademark infringement or malicious falsehood. However, in order to con-

231 Ohly and Spence, supra note 2, p.8.

A Comparative Study of Comparative Advertising in Vietnamese and English law

52

stitute malicious falsehood, three requirements must be satisfied.232 These are (i) that there has been a falsehood. The defendant must have published words about the plaintiff which were false, (ii) that it was made maliciously, and (iii) that the plaintiff has suffered special damage which must have followed as the direct and natural re-sult of the publication of those words. In order to establish special damage, it is suffi-cient to show that the published words were calculated to cause pecuniary damage to the plaintiff in the objective sense of pecuniary damage being a likely result of the publication. The court also affirms that to establish malice, it would be sufficient to show that the defendant knew when he published the words that they were false, or was reckless as to whether they were false or not, in the sense of not caring whether the information conveyed was true or false. If malice is not established, it will not be considered necessary to consider the issue of damages.

These sanctions can also apply to a comparative advertisement if it constitutes defamation. In order for an action in defamation to lie a comparative advertisement would have to contain a statement which might tend to harm the reputation of the competitor so as to lower him or her in the estimation of the community or to deter third parties from associating or dealing with him or her.

4.2 Sanctions applied to unlawful comparative advertising in Vietnamese law

4.2.1 Enforcement authority Pursuant to the Law on competition, a comparative advertisement in which an ad-

vertiser directly compares its goods or services with those of competitors is unlawful. This is an unfair competitive practice and the Competition Administration Depart-ment has the right to deal with and impose fines in respect of this action233. The Competition Administration Department (VCAD) is an organization under the Min-istry of Trade and has the function of assisting the Minister of Trade in undertaking the administration of fair competition.234

In addition, if comparative advertising is unlawful and cause damage, the ag-grieved party can claim for civil damages in court proceedings.

232 Ibid, p.11. 233 Law on Competition, supra note 98. 234 Ibid, Article 2.4(b), also see Decree No.06/2006/ND-CP of January 9th on Functions, Du-

ties, Powers and Organizational Structure of Competition Administration Department.

Fel! Använd fliken Start om du vill tillämpa Heading 1 för texten som ska visas här.

53

4.2.2 Sanctions 4.2.2.1 Administrative sanctions

The main sanction which is imposed for an advertisement directly comparing the goods and services of an enterprise with those of the same type of another enterprise is a fine.235 A fine can range from fifteen million (15,000,000) VND up to twenty five million (25,000,000) VND.236 A fine of from thirty million (30,000,000) to fifty million (50,000,000) VND shall apply for this violation when the goods and services in question are foodstuffs, food products, medical apparatus, preventive and treat-ment medicine for humans, veterinary drugs, fertilizer, animal feed, plant protection agents, seeds or domestic animals, medical services or healthcare services237 or the scale of the advertisement encompasses two or more provinces or cities under central authority.238 In addition to fines, the violating enterprise can be obliged to issue a public retraction.239

4.2.2.2 Civil sanctions

Pursuant to civil law, civil sanctions consist of (i) compelling termination of the in-fringement; (ii) compelling public rectification and apology; and (iii) compensation for damages in a case where the aggrieved party sues for civil damages. The liability to pay compensation for lost profits may be applied to the offending party if it is proved that the unlawful comparative advertising harming the reputation, property or other interest of the aggrieve party. This give rise to a liability to pay compensation for non-contractual damages.240

This liability to pay compensation only arises if four conditions are satisfied. First, there is actual damage to the plaintiff. Damage is the important factor when examin-ing liability for compensation since if there is no damage, there can be no liability and compensation will not be forthcoming. The damages consists of material and mental damages. The material damages are the decreasing or declining turnover, loss of income, profits and business chances and reasonable expenses needed to prevent,

235 Decree No.120/2005/ND- CP on Dealing with breaches in Competition section, Article 4.2

and Article 35. 236 Ibid, Article 35(1). 237 Ibid, Article 35(2a) and Article 10(2a). 238 Ibid, Article 35 (2b). 239 Ibid, Article 35(3) and Article 30(3). 240 Civil Code No. 33/2005/QH11 of 14 June 2005, Article 307, Article 604(1). This is similar

to the common law of torts.

A Comparative Study of Comparative Advertising in Vietnamese and English law

54

restrict and repair damages. The mental damages are damages caused by harm to honour, dignity or reputation. Damage thus essentially consist of the reasonable costs of mitigating and remedying the damage; and compensation for loss of or reduction in actual income.241 Secondly, there is an infringement. This infringing action in this case is the unlawful comparative advertisement. Thirdly, there is a fault of the of-fending party. Fault here includes both intentional and unintentional fault. Finally, there is a causal relationship between infringement and damages.

4.3 Comparative remarks

In English law, apart from the “discipline” sanctions applied by the ASA to advertis-ing which violates the codes of advertising , the main sanctions applied to compara-tive advertising are administrative, civil and criminal sanctions in which civil sanc-tions play an important role. Unlike English law, Vietnam does not have a self-regulation system in respect of advertising and the main sanction applied to a violat-ing action is an administrative one. Vietnamese law consider direct comparative ad-vertising is an action that infringes economic order and the state needs to interfere in and stop this infringement. A civil sanction is only involved when the aggrieved party claims compensation.

In English law, traders may choose any one or more of a range of measures to protect their rights. They can complain to the ASA about unlawful advertising or send their complaint to the OFT or TSS. In addition, based on TMA, they can take civil proceedings against undertakings which unlawfully use their signs in compara-tive advertising. Furthermore, they can request compensation under tort law. By con-trast, it seems that the aggrieved party does not have so many choices in Vietnamese law. Advertising in which an advertiser directly compares its goods or services with those of a competitor is classed as unfair competitive action. This action is regulated by the Law on Competition which obviously provides for administrative sanctions. Civil liability, particularly compensation for loss only arises in cases where the ag-grieved party claims damages. Article 6 of decree 120 states that payment of com-pensation for loss shall be implemented in accordance with the civil law.242 It is un-clear whether VCAD has the right to decide the amount of compensation to be paid by the offending party, the determination of the amount of compensation being based on civil law or whether it can only apply administrative sanctions which consist of a fine and public retraction. If the latter, the aggrieved party would have to apply for compensation in civil court. Pursuant to civil law, civil sanctions include compensa-

241 Ibid Article 611. 242 Decree No.120, supra note 235, Article 6.

Fel! Använd fliken Start om du vill tillämpa Heading 1 för texten som ska visas här.

55

tion, ordering termination of the infringement and ordering a public rectification and apology. Nevertheless, the applicable provisions suggest that VCAD has the prior-ity.243 When there unfair comparative advertising takes place, traders must first com-plain to VCAD. Based on Vietnamese current law, it is not clear that a request for termination of the infringement can be taken to civil court. Nevertheless, pursuant to the law in force before the enactment of the Law on Competition, an aggrieved party could ask the civil court to apply civil remedies to the advertiser who infringed the law on advertising. KymDan case is an illustration of this as the plaintiffs claimed against the violation in civil court. The court judged that the advertising of KymDan was unlawful and KimDan had to make a public apology to the plaintiffs for its mis-leading advertising and to rectify the contents of the advertisement.

5. Conclusion

Comparative advertising, when truthful and non-misleading, is a useful source of information to consumers, helps them in making rational purchase decisions and en-hances market transparency. In addition, It is also an effective promotional tool for the advertiser. Both Vietnamese and English law provide legal frameworks to regu-late comparative advertising. They provide the conditions for legitimate comparative advertising as well as the sanctions applied to the illegitimate.

On the conditions of lawful comparative advertising, Vietnamese and English law shares some common features in both general and negative conditions. They are that the advertising is not misleading, does not create any confusion, does not denigrate or defame traders or the products of traders. On the specific conditions, English law permits comparative advertising irrespective of whether it direct or indirect provided that it satisfies certain conditions. On the other hand, Vietnamese law merely prohib-its direct comparative advertising. English law with its laws, self-regulation system and case law has provided a better framework for advertisers than does Vietnamese law. It has realized that to prohibit comparative advertising is contrary to the right to do business and freedom of speech and would deny the advantages provided by comparative advertising. Vietnamese law, too, should not prohibit direct comparative advertising. What it should do is, like English law, say that comparative advertising

243 Article 5 of Law on Competition provides that Where there is any difference between the

provisions of this Law and the provisions of another law with respect to a practice in restraint of competition or unfair competitive practice, the provisions of this Law shall apply.

A Comparative Study of Comparative Advertising in Vietnamese and English law

56

is permitted if it satisfies certain conditions. If this were done, Vietnamese law would also need to supplement the current provisions relating to comparative advertising. First, it should give a definition of comparative advertising. Comparative advertising means basically advertising which whether explicitly or by implication identifies a competitor or a product offered by a competitor. In addition to general conditions, it needs to add that such advertising should only compare products meeting the same needs or intended for the same purpose and objectively focus on one or more mate-rial, relevant, verifiable and representative features of the products, which may in-clude price.

As to the sanctions imposed for unlawful comparative advertising, there are many choices both as to enforcement authority and remedies for the aggrieved party in English law while the choice in Vietnamese law is much more restricted. Vietnamese law should clarify the respective roles of VCAD and the court when judging in-fringements of comparative advertising law. The law should give undertakings the right to choose whether to complain to VCAD or start civil proceedings in the civil court.

To sum up, it is necessary to permit comparative advertising due to its advantages. However, a legal framework for such advertising should be erected on the basis of balancing the benefits between trader and consumers to ensure a fair competitive environment and market transparency.

57

Table of Statutes and other Legal Instruments European Community Directives

1. Council Directive 84/450/EEC of 10 September 1984 relating to the approxima-tion of the laws, regulations and administrative provisions of the Member States concerning misleading advertising O.J No. L 250, 19/09/1984 p.17 – 20.

2. Directive 97/55/EC of European Parliament and of the Council of 6 October 1997 amending Directive 84/450/EEC concerning misleading advertising so as to include comparative advertising O.J No. L290, 23/20/1997, p.18- 23.

3. Directive 2006/114/EC of the European Parliament and the Council of 12 December 2006 concerning misleading and comparative advertising O.J No L376, 27/12/2006.

4. Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business- to – consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (“Unfair Commercial Practices Directive”).

5. First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade-marks, (OJ L40,11.2.1989, at 1).Directive as last amended by Decision 92/10/EEC (OJ L 6, 11.1.1992, at 35).

6. Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks (Codified version) (OJ L 299, 8.11.2008, p. 25–33).

7. Directive 97/7/EC of the European Parliament and of the council of 20 May 1997 on the protection of consumers in respect of distance contracts.

8. Commission Notice on the definition of relevant market for the purposes of Community Competition Law, (OJ. C372/5).

9. Directive 89/552/EEC concerning the pursuit of television broadcasting activities (O.J No. L 298, 17/10/1989, p.23).

10. Directive 97/36/EC amending Directive 89/552/EEC (O.J No.L 202, 30/07/1997, p.60).

58

National Legislations

England Town and Planning Act 1990

Trademark Acts 1994

Broadcasting Acts 1996

Enterprise Acts 2002

Communications Act 2003

The Control of Misleading Advertisements Regulations 1998 (amended 2000, 2003)

The Busines Protection from Misleading Advertising Regulations 2008

The Consumer Protection from Unfair Trading Regulations 2008

British Code of Advertising, Sales Promotion and Direct Marketing 11th edn 2003

Television Advertising Standards Code November 2004

Radio Advertising Standards Code November 2004

Vietnam Constitution (1992) of the Socialist Republic of Vietnam

Civil Code (No. 33/2005/QH11 of 14 June 2005)

Civil Procudure Code (No.24/2004/QH 11 of 15 June 2004)

Commercial Law (No.05/1997/QH 9 of 10 May 1997) (has been repealed)

Law on Competition (No.27/2004/QH 11 of 03 December 2004)

Commercial Law (No.36/2005/QH 11of 27 June 2005)

Intellectual Property Law (No.50/2005/QH 11 of 29 November 2005)

Ordinance on Advertising (No.39/2001/PL-UBTVQH 10 of 16 November 2001)

Decree No.194/ND- CP on advertising activities on Vietnamese Territory of 31 December 1994.

Decree No.24/2003/ND-CP of the Government dated 13 March 2003 providing detailed regulations for implementation of the Ordinance on Advertising.

Decree No.175/2004/ND-CP of the Government dated 10 October, 2004 on Sanctioning Administrative violations in Trade domain.

Decree No.116/2005/ND-CP on Competition providing detailed regulations for implementation of a number of articles of the Law on Competition(No.116/2005/ND CP of 15 September 2005).

Decree No.120/2005/ND-CP on Dealing with breaches in Competition section (Decree No. 120/2005/ND/CP of 30 September 2005).

Decree No.06/2006/ND- CP on functions, duties, powers and organizational structure of Competition Administration Department (Decree No.06/2006/ND- CP of 9 January 2006).

59

Decree No. 37/2006/ND – CP of the Government providing detailed regulations for implementation of Commercial Law with respect to comercial enhencement activities (No. 37/2006/ND – CP of 4 April 2006).

Circular No.79/2005/TT- BVHTT of the Ministry of Culture and Information amending and adding to Circular 43/2003/ TT – BVHTT) guiding implementation of Decree 24/2003/ND-CP dated 13 March 2003 (No.79/TT/- BVHTT of 8 December 2005).

Circular No.43/2003/TT- BVHTT on Advertising providing guidelines for implementation of Decree 24/2003/ND-CP of the Government dated 13 March 2003 providing detailed regulations for implementation of the Ordinance on Advertising (No. 43/2003/TT- BVHTT, of 16 July 2003).

60

Table of Cases Court of Justice of the European Communities

Case Case C-112/99 Toshiba Europe GmbH v Katun Germany GmbH, [2001] ECR I-07945 (“Toshiba”Case). Case C-44/01 Pippig Augenoptik GmbH & Co. KG v Hartlauer Handelsgesellschaft mbH and Verlassenschaft nach dem verstorbenen Franz Josef Hartlauer [2003] ECR I-3095 (“Pippig Augenoptik”Case). Case C-356/04. Lidl Belgium GmbH & Co. KG v Etablissementen Franz Colruyt NV.[2006] ECR I-08501 (“Lidl/Colruyt”Case).

Case C-59/05 Siemens AG v VIPA Gesellschaft für Visualisierung und Prozeßauto-matisierung mbH [2006] ECR I- 02147 (“Siemens”Case).

Case C-381/05 De Landtsheer Emmanuel SA v Comité Interprofessionnel du Vin de Champagne and Veuve Clicquot Ponsardin SA. [2007] ECR I-3115 (“Champagne” Case).

Case C-533/06 O2 Holdings Limited and O2 (UK) Limited v Hutchison 3G UK Limited, [2008] not yet reported (“O2 Holdings”Case).

English Case Bismag Ltd v. Amblins (Chemists) Ltd [1940] EWCA, Ch.D 667. Compaq Computer Corporation and Another v. Dell Computer Corporation Limited and Another [1992] EWHC Ch.D.

Barclays Bank Plc v RBS Advanta Times [1996 ](Ch D). Richard Butler v. Derby City Council [2005] EWHC 2835 (Admin). O2 Holdings Limited, O2 (UK) Limited v. Hutchison 3G Limited [2006] EWHC 534 (Ch). L'Oreal SA and Others v. Bellure NV and Others [2006] EWHC 2355 (Ch).

L'Oreal SA and Others v. Bellure NV and Others [2007] EWCA Civ 968.

Vietnamese Case

Case Kim Dan v Van Thanh,Uu Viet, Quyet dinh giam doc tham cua Hoi dong tham phan Toa an nhan dan Toi cao (the review judgements of the council of judges of the Supreme Peope Court No.20/2003/DS - GDT, June 23rd 2003 ) 2003- 2004.

61

Bibliography

Unless otherwise stated, all Internet links shown in this bibliography have been as-sessed on 30 November 2008.

Official Reports and other Documents Advertising Standards Authority, Annual Report 2007, available at

<:www.asa.org.uk/ASA_2004_Rebuild/ASAAppBase/AnnualReport2007/default.asp

Advertising Standards Authority, A short guide to what we do, available at: < www.asa.org.uk/asa/about/short_guide/”

Advertising Standards Authority, Annual Statement 2008 – 2009, available at:www.asa.org.uk/NR/rdonlyres/DECC627A-41A5-4393-9654-FEE6449A0E9C/0/ASA_Annual_Statement_0809_smlowres.pdf

Committee of Advertising Practice (CAP), Non-broadcast Complaint Handling procedures, available at:

www.cap.org.uk/NR/rdonlyres/3B1638C7-9433-4B0F-9087 CE762977CDA5/0/NonbroadcastComplaintHandlingProcedures25Jan08.pdf

Committee of Advertising Practice, Regulating the UK advertising industry- Broadcast, available at :< www.cap.org.uk/cap/about/cap_broadcast/>

Committee of Advertising Practice, Broadcast Complaint Handling Procedures, available at:<www.cap.org.uk/cap/about/cap_broadcast/>

Competition Law Association, Comparative Advertising – which framework for the regulation of comparative advertising ?, available at:< www.competitionlawassociation.org.uk/docs/LIDC%20Report.DOC

Department for Business Enterprise & Regulation Reform, about us, available at :<www.berr.gov.uk/aboutus/index.html”

Office of Communication, About Ofcom, available at :< www.ofcom.org.uk/about/>

Office of Fair Trading, Annual Report and Resource Accounts 2007- 2008, available at: < www.oft.gov.uk/shared_oft/annual_report/2007/HC836.pdf”

Office of Fair Trading, Prioritisation Principles,available at <www.oft.gov.uk/shared_oft/about_oft/oft953.pdf>

Office of communication, Memorandum of Understanding between Ofcome and the ASA(B), at:< www1.bsc.org.uk/consult/condocs/reg_broad_ad/update/mou/mou.pdf

62

Monographs Bainbridge, David I, Cases & Materials in Intellectual property law second edition,

Pitman Publishing 1999.

Bodewig- Henning Frauke, Unfair Competition Law, Kluwer Law International Pub-lishing 2006.

Bogdan, Michael, On the value and method of rule- comparison in comparative law, in Heinz – Peter Mansel, Thomas Pfeiffer, Herbert Kronke, Christian Kohler, Rainer Hausmann, Festschrift fur Erik Jayme, Sellier. European Law Publishing 2004.

Dayan, Armand, Advertising Art translated by Do Duc Bao, Ho Chi Minh City pub-lishing 2001.

E.Miracle, Gordon & Nevett Terence, A Voluntary Regulation of Advertising : A Comparative Analysis of the United Kingdom and the United States Lexington Book 1987.

Kolah, Ardi, Essential Law for Marketers, Butterworth - Heinemann Publishing 2002.

L.Bently and B.Sherman, Intellectual Property Law second Edition 2004, Oxford University Press.

Le Danh Vinh, Hoang Xuan Bac, Nguyen Ngoc Son, Phap luat canh tranh tai Viet Nam (Competition law in Vietnam), Tu Phap Publishing 2006.

Lee, Monle & Johnson,Carla, Principles of Advertising, Haworth Press 2005.

Le Hoang Oanh, Binh luan khoa hoc Luat canh tranh (Scientific Comments on the Competition Law), Chinh tri Quoc gia publishing 2005.

Le Tai Trien, Luat Thuong Mai Viet Nam dien giai (Interpretation on Vietnamese Commercial law) Vo.1, Kim Lai Publishing 1976.

Michaels, Amanda, A practical guide to Trade mark law Third Edition, London Sweet & Maxwell 2002.

Morasch Manuel, A comparative study of trademark laws and competition laws in Canada and the European Union, at the website:<

http://papers.ssrn.com/sol3/results.cfm?RequestTimeout=50000000>

Nguyen, Thi Dung, Phap luat ve xuc tien thuong mai o Vietnam nhung van de ly luan va thuc tien (Laws on promotions in Vietnam- Theories and practices), Chinh tri Quoc Gia Publishing 2007.

Ohly, Ansgar & Spence, The Law of Comparative Advertising: Directive 97/55/EC in the United Kingdom and Germany, Oxford – Portland Oregon publishing 2000.

63

Petley, Julian, Advertising: Technology, People, Process, Black Rabbit Books publishing, 2004.

Pham Duy Nghia, Chuyen khao luat kinh te, Hanoi National University publishing 2004.

Philips Jeremy, Trade mark law: A Practical Anatomy, Oxford University Press, 2003.

Philips Jeremy, Trade mark Use, Oxford University Press 2005.

Prime, Terence & Booton David, European Intellectual Property Law, Ashgate Dartmouth Publishing company 2000.

The Law College of Hanoi (Truong Dai Hoc Luat Ha Noi), Giao trinh Luat Thuong Mai Viet Nam tap 2 (Text book on Vietnamese Commercial Law volume 2), Cong An Nhan Dan Publishing 2006.

64

Articles in Journals, Anthologies etc. Augenhofer, Susanne, Comparative Advertising in Europe: The Preliminary Ruling

in Pippig vs. Hartlauer and open question after the 1997 Directive, Tul. Eur. & Civ. L. F.

Bodewig, Theo, The Regulation of Comparative Advertising in The European Union, Tulane European & Civil Law Forum 1994.

Barry, Thomas E., Comparative Advertising: What have we learnt in two decades? 33(2) J. Advert. Res.19, 20(1993).

Bui Nguyen Khanh, Chuc nang cua luat tu trong viec bao ve trat tu canh tranh tu goc do nghien cuu so sanh giua phap luat canh tranh khong lanh manh cua Viet Nam va CHLB Duc, State and Law Journal No.10/2007.

Carey, Peter, Comparative Advertising: European Harmonisation, Ent.L.R 2000, 11(2).

Carty, Hazel, Register Trade marks and permissible comparative advertising, European intellectual property review 2002.

Doepner Ulf and Erich hufnagel, Frank, German Courts Implement The EU Direc-tive 97/55/EC- A Fundamental shift in the law on Comparative Advertising?, Trademark Rep. vol. 88.

Donthu, Naveen, A Cross- Country Investigation of Recall of and Attitude Toward Comparative Advertising, 27(2) J. Advert.

Fitzgerald, Darren, Comparative Advertising in the United Kingdom, E.I.P.R. 1997, 19(12).

Fletcher, Stella, Comparisons and conclusions: welcome clarification from the European Court of Justice on the interpretation of Comparative Advertising Directive, European intellectual property review 2003.

Fowler, Stacey, Comparative advertising: the High Court considers the application of section 10(6) and 11(1)(b) of the Trade Marks Act 1994 in British v.Ryanair Limited, European intellectual property review 2001.

Harrison, Roslyn S., The Law of Comparative Advertising in the United States and Abroad, in Global Trademark and Copyright 1995: Management & Protection 218.

Kirmani, Samia M., Cross- boder Comparative Advertising in the European Union, 19 Boston College International & Comparative Law Review, No.1, 1996.

65

Lensing- Kramer, Andrea, Recent developmenets in comparative advertising and their implication for Trademark Law in Germany, Trademark reporter 2004.

Macfarlane, Nicholas, Comparative advertising limitations in the UK, Managing Intellectual Property 1996.

Meyer Dirk – Harport, The UK Trade Marks Act 1994 and Comparative Advertising, Entertainment Law Review, 1995.

Mills, Belinda, Comparative advertising: should it be allowed? European intellectual property review 1995.

Miskólczi- Bodnár, Péter, Definition of comparative advertising, European Integra-tion Studies, Volume 3.Number,2004.

Nguyen Nhu Phat, Doi tuong dieu chinh cua phap luat chong canh tranh khong lanh manh”, State and Law Journal No.9/2000.

Nguyen Thi Tram, Ap dung cac quy dinh cua Luat canh tranh ve quang cao so sanh, va mot so van de phat sinh trong thuc tien (Application of Competitive law provi-sion on comparative advertising, and some practical issue, Tap chi kiem sat (Prosecution Journal ) No.9 (05/2007).

Pinto, Timothy, Comparative is not trade mark infringement, Journal of Intellectual Property Law & Practice, 2007.

Pinto, Timothy Bubbles! The indispensability of the Comparative Advertising Direc-tive to trade mark law, Journal of Intellectual Property Law & Practice, 2006, Vol.1, No.9.

Pham Hoang Giang, Ban chat cua hanh vi canh tranh khong lanh manh va doc quyen trong phap luat canh tranh, State and Law Journal No. 4/2003.

Phan Huy Hong, Quang cao so sanh trong phap luat canh tranh - Mot nghien cuu so sanh Luat (Comparative advertising in Competition Law- A comparative legal study), State and Law Journal No.1/2007.

Reeskamp, Paul, Is Comparative Advertising a Trade Mark Issue, European Intellec-tual Property Review 2008.

Romano, Charlotte J., Comparative Advertising in the United States and in France, Northwestern Journal of International Law and Business, Winter 2005.

Spink, Paul and Petty, Ross, Comparative advertising in the European Union, Inter-national and Comparative Law Quarterly, 1998.

Steckler, Brunhildesteckler and Bachmann, Frank, Comparative Advertising in Ger-many with Regard to European Community Law”, 10 E.I.P.R (1997).

66

Stephenson, Paul, Comparative advertising and intellectual property rights, European intellectual property review 2006.

Willimsky, Sonya M., Comparative advertising: an overview, European intellectual property review 1996 p.649