Knocking Copy

While not overly common in today’s age of social media and influencers fashion companies are likely to engage directly or indirectly in fashion comparisons which may result in comparative and pejorative claims against competitors, commonly known as Knocking Copy. So what are the limits of such claims before one crosses the line and in fact what are those lines?
The Federal Trade Commission has a statement of policy that goes back to 1979 but the law is truly driven by the facts, meaning general guidelines only go so far and each copy must be interpreted based upon the actual language of the advertisement. In concept the FTC wishes to ensure that our advertising is not deceptive as to the consumer and not unfair as to the competitors mentioned.
Knocking copy is governed mainly by the Federal Trade Commission and the Lanham Act, Federal trademark Law. In concept the government actually encourages knocking copy since it serves to support competition and inform the consumer. This is limited, however, by the clarity and accuracy of the message. Specifically the applicable standard is that the advertisement must be structured so that the comparisons are clearly identified, truthful and non-deceptive; finally the advertisement must be fair, or in the negative as stated by the FTC “not unfair.”
Deceiving the consumer is the main concern. In summary, and very simple summary, the advertisement will be deemed deceptive if it will most likely, not necessarily, cause the consumer to be misinformed and important in the consumer’s decision making process.
Fundamentally one should have evidence backing up and supporting comparative claims, so it should be more than just our opinion or mere letters of accolade from customers. A true survey would be good.
In addition to the above a company can bring a private right of action especially under the Lanham Act meaning a claim for trademark infringement.
Finally the National Advertising Division of the Council of Better Business Bureaus, Inc. is a self-regulatory body that commands the respect of national advertisers, advertising attorneys, federal and state regulators, and the judiciary. Parties may appeal NAD decisions to the National Advertising Review Board.

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