不正当比较广告的法律规制

Regulation on Unfair Comparative Advertising

比较广告作为公众了解商品或商家的重要渠道,在商业宣传中的作用越来越突出。在界定是否构成比较广告时,应着重考虑"比较"的含义:比较的对象、比较的方式以及比较的意图。比较广告的本质属性使其更容易被认定为不正当竞争,这也是比较广告早期被广泛禁止的主要原因。随着经济贸易的发展,竞争政策的目标从以保护商标权人利益为重心逐渐转向追求自由竞争和提高消费者福利。自美国承认比较广告以后,欧盟也逐渐放松了对比较广告的规制,但在对主要以虚假陈述或引人误解型、利用他人商誉型和商誉诋毁型三类可能不正当的比较广告的具体规制上,美国与欧盟差异明显。借鉴美国与欧盟的立法、判例经验,有助于重新认识并规制我国的比较广告。

As a significant way to obtain the information about the sellers or their goods, comparative advertising is playing an important role in the market promoting. In judging whether an advertisement constitutes the comparative advertising, we should focus on the following aspects about meaning of ＂com- parison＂： the objects of comparison, the way of comparison and the intention of comparison. The nature of comparative advertising has made it more likely be identified as an unfair competition. It was the main reason that comparative advertisement has been abandoned in the early stage. With the development of e- conomy and commerce, the goal of competition policy is changing from protecting trademark owner to pursuing the free competition and improving consumers＇ welfare. After the United States acknowledged comparative advertising, the European Union has gradually relaxed the limitation to it. In regulating the three types of comparative advertising, false statements or misleading, taking advantage or defaming oth- ers＇ goodwill, which are more likely defined as unfair competition, obvious differences do exist between US law and EU law. The experience of legislation and case law of the United States and the European U- nion can help us review and regulate the comparative advertising in China.