When advertising, a business is entitled to mention its competitor’s brand so long as the reference is truthful and does not create a false impression that the competitor is related to the advertising company. In being truthful, the advertiser should not exaggerate and should err on the side of having the statement be objectively provable. In avoiding any false association, the context of using a competitor’s name or brand should be clear that the mention is made only for comparative or descriptive purposes and there is no implication of a connection. Under this trademark theory of “nominative fair use,” even using a third party’s logo is allowed so long as the context of the usage is merely identifying the other entity or brand as part of the broader advertisement, rather than calling attention to the other brand in an effort to attract potential customers.
Ned T. Himmelrich
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