BA sued Ryanair for trademark infringement and malicious falsehood in respect of a comparative press ad Ryanair placed in 1999
Topic: Comparative Advertising
Who: British Airways V Ryanair
When: 5th December 2000
Where: High Court, London
BA sued Ryanair for trademark infringement and malicious falsehood in respect of a comparative press ad Ryanair placed in 1999. The claim concerned two advertisements each comparing Ryanair fares to several European destinations with more expensive BA rates headed by "Expensive BA….DS!" and "Expensive BA" respectively. BA complained about offensiveness of the headlines of the ads, unfairness of individual price comparisons and unfairness of two destination comparisons.
Mr Justice Jacob held that section 10 (6) Trademarks Act 1994 which allows use of a trade mark comparatively if such use is in accordance with honest practice is not qualified by the Comparative Advertising Directive and that honest comparative advertising using a trademark is allowed. Use of "BA" was just use of the mark in relation to the proprietor and while the ad might amount to vulgar abuse or may be taken as offensive, the ad did not amount to trademark infringement or malicious falsehood.
Mr Justice Jacob ruled that in substance the ads were true, in fact Ryanair had failed to point out a further disadvantage of the BA fare in respect of the destination comparison of Dinard, namely that the traveller had to change planes. Not doing so could not make the advertisement dishonest. The average customer would not find the price comparison misleading and the fact that the airlines flew to different airports in one of the destinations used in the ad did not make the comparison unfair. The Judge's comment that "the real reason BA does not like the ad is precisely because it is true" contains the message that it is acceptable to criticise ones competitors in ads as long as the comparison is true. BA's claim was dismissed on all grounds and it was ordered to foot the legal bill.
Why this matters:
Comparative advertising can be a relatively cheap and effective way of publicising ones brand, but it may also prove to be a hazardous marketing tool which may result in a slapped wrist by the ASA at best and a costly court case at worst. The Ryanair victory may lead the way for others to have a pop at their competitors in an ad campaign as this case clearly shows that one can be detrimental about a competitors trademark as long as it is the truth. This case clarifies how far one can go in comparative ads and may lead to more robust comparative advertising. Some believe the ruling will bring the UK closer in line with the US, where having a pop at your competitor is almost a prerequisite. Mr Justice Jacob confirmed his earlier ruling in the clash between mobile phone operators Orange and Vodaphone in 1996, where Vodaphone lost a similar claim over Orange's comparative ads that customers would save £20 every month by switching to Orange. Even though the ruling opens the door to more aggressive advertising, advertisers should be careful not to be offensive to a competitor as this could easily backfire and actually be damaging to the brand. In addition, there is the risk of confusing customers through comparative advertising as the high number of complaints to the ASA this year demonstrates.