Comparative advertising, or how to take the law into one’s own hands with the help of the law
Comparative advertising implicates more than just the business that uses it and the competitor(s) it designates ; it also involves the law, which serves as supporting ground and frame for the confrontation between the two. By enabling businesses to « take the law into their own hands with the help of the law », comparative advertising activates joint, constant redefining of the economic practice of advertising and the rules purporting to frame it. Redefinition is generated by a chronological series of three hesitations. The first is historical and concerns regulators, who gradually decided to incorporate the notion of comparative advertising into economic regulations while considerably limiting the practice. The second is strategic, and concerns businesses : when a business tries to assess whether or not it would be to its advantage to engage in comparative advertising, it is exploring at least two ways of playing with the law : either comparing its product with a fictitious competitor’s to avoid having to deal with the law, or else resolutely situating itself inside the legal framework, as if the actors were trying to make the law function as a seal of approval in spite of itself. The third hesitation is social in character and involves actors’ hesitations, those of plaintiffs, lawyers and the judge : their task is to accommodate the ambiguities inherent in the other two hesitations. The article examines a particular case of jurisprudence by which it shows the degree to which comparative advertising leads the judge to compromise with both legal rules and economic givens. Use of comparative advertising thus delimits a space of collective experimentation in which economic actors are able continuously to test, bolster, or redefine the norms and practices of market exchange.