HONG KONG SAR, CHINA Law and Practice Contributed by: Angus Forsyth, Angus Forsyth & Co
4. Comparative Advertising and Ambush Marketing 4.1 Specific Rules or Restrictions
able as sponsor identification in terms of presentation or by context. The display of sponsor identification within pro - grammes is subject to the following: • sponsor identification should not contain superla - tive claims (unless they are capable of substantia - tion), prize information and indirect exhortations to the viewing public to purchase, rent or use the sponsor’s products or services; • viewers should not be subject to hidden editorial influence; and • sponsor identification within a programme should not be too frequent or distraction that might affect the viewing pleasure of an outreach view. Title of a programme or a programme segment/pro - gramme feature is allowed and sponsor identification may be incorporated into sponsored programme titles, programme segment titles and programme feature titles subject to the basic ground rules set out above. There are specific sponsorship considerations for specific types of programme such as children’s pro - grammes, educational programmes and current affairs programmes. 3.5 Special Rules for Native Advertising Native advertising is paid promotional content designed to match the visual design, style and func - tion of non-paid content on the platform where the native advertising appears. Accordingly, it provides a seamless and non-disruptive user experience effec - tively integrating and branding the native advertised material such that the whole looks and feels like the surrounding organic content. Specifically, advertising of this category, with the look and feel of editorial or entertainment content, must be identified as such in order to constitute an honest and explicit connection to the specific editorial or entertainment content being communicated.
The 4As Code expressly does not permit its members to engage in “disparaging” advertisement, which is defined as “Advertisement that seeks to compare a product or service to a similar or other product and service in a way that is misleading, derogatory or false in implication or in fact.” The Broadcast Codes require that advertising mat - ter should contain no claims intended to disparage competitors, competing products or other industries, professions or institutions. The Code of Practice (the 4As Code) does not permit its members to indulge in disparaging advertisement, defined as advertisement that seeks to compare a product or service to similar or other products and services in a way that is mis - leading, derogatory or false in implication or in fact. 4.2 Competitor Copyrights and Trade Marks Action lies against an advertiser for the tort of passing off by way of the use of the name of a competitor or trade mark of a competitor or like packaging of a com - petitor without the authority of the genuine third-party owner. The Broadcast Codes require that advertising matter should contain no claims intended to dispar - age competitors, competing products or other indus - tries, professions or institutions. The Code of Practice published by the 4As does not permit its members to publish disparaging advertisement, which is in this context defined as “advertisement that seeks to com - pare a product or service with or to similar or other products and services in a way that is misleading, derogatory or false implication or in fact”. An exten - sion to this Code prohibits any implication that a com - petitive product is not fit for purpose. The author as defined in the Copyright Ordinance is able to restrain unauthorised use of the copyright of the author. Regarding trade marks, the Trade Descriptions Ordi - nance provides that any person forging, that is apply - ing falsely to any goods or making related dies or blocks of any trade mark, commits an offence unless proving that he acted without intent to defraud.
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