Trademark rights and comparative advertising

The popularity of comparative advertising has grown in recent decades. However, it has been historically rare in Argentina due to the uncertainty and risk that it entailed, as there was no specific legislation in this regard until recently.

Since the Trademark Law reserves the exclusivity of trademark use for its owner, legal scholars in Argentina have debated whether the use of trademarks in comparative advertising is prohibited.

With the approval of Emergency Decree 274/2019 on 17 April 2019 (for further details please see "Implications of new unfair competition legislation for IP practitioners"), legislation has, for the first time, addressed comparative advertising in Argentina in a detailed and systematic manner and established when it shall be allowed.

Section 15 of Emergency Decree 274/2019 states that "for the purposes of this Decree, comparative advertising shall be that which explicitly or implicitly refers to a competitor, or their trademark, or the products or services offered by them".

Further, the decrees states that comparative advertising will be allowed if it complies with all of the following conditions:

• it does not lead to confusion or deception between the advertiser and a competitor, or between the goods or services of the advertiser and those of a competitor;
• it compares goods and services that satisfy the same needs or have the same purpose, and said comparison is made objectively between one or more essential, pertinent, representative and demonstrable features of said goods and services, which may include price;
• it aims to inform consumers of the advantages of the advertised goods or services;
• it does not discredit or defame a competitor's IP or industrial property rights or circumstances;
• it does not improperly gain advantage over the reputation of a competitor's trademark or the names of origin of a competitor's goods;
• it does not present goods or services as an imitation or copy of goods or services offered under a trademark or protected trade name; and
• it is made only with other goods of the same name for goods covered by a name of origin, geographical indication or specific name.

For further information on this topic please contact Daniel R Zuccherino at Obligado & Cia by telephone (+54 11 4114 1100) or email (dzuccherino@obligado.com.ar). The Obligado & Cia website can be accessed at www.obligado.com.