Who: Gibraltar (UK) Ltd, VetPlus Ltd and Viovet Ltd
Where: United Kingdom
When: 9 April 2024
Law stated as at: 16 May 2024
What happened:
In the case of Gibraltar (UK) Ltd and another company v Viovet Ltd [2024], the court considered a preliminary comparative advertising issue in a trade mark infringement case involving registered trade marks for certain veterinary nutraceutical products owned by the first claimant, Gibraltar (UK) Ltd (GUK). The second claimant, VetPlus Ltd, was the GUK’s authorised distributor and marketed GUK’s products alongside its own VetPlus products.
The defendant, Viovet, published a series of ads on its website offering VetPlus products for sale under GUK’s trade marks. When a customer selected a VetPlus product, they were presented with an option to “Add to Basket“, as well as an alternative option to “Save £[x] per day” or “Swap and Save [£]“. If the customer clicked on one of the alternative options, it led to Viovet’s own product. If the customer clicked the “Add to Basket” button, they were presented with a further pop-up displaying both the selected product and a Viovet product. The prices were displayed beneath each product and Viovet’s product was cheaper in every case. The customer could then choose to “Swap and Save“, which led to Viovet’s product, or reject the prompt and select the VetPlus product.
The claimants said that these ads breached regulation 4(d) of the EU Comparative Advertising Directive (substantially implemented in the UK by the Business Protection from Misleading Marketing Regulations 2008) and, therefore, amounted to trade mark infringement under the EU Trade Mark Regulation. According to regulation 4(d) of the 2008 Regulations, one of the conditions for permitted comparative advertising is that the ad objectively compares”one or more material, relevant, verifiable and representative features of those products, which may include price“.
The preliminary issue before the court was to determine which features were compared, either expressly or by implication. The parties agreed that the only feature expressly compared was the price. The question was whether the ads also impliedly compared other features, including the quality and/or efficacy of the products, from the point of view of the “average consumer” (as defined in trade mark law).
The court disagreed with the defendant’s argument that the average consumer would merely think that the Viovet product was different in some way (and possibly inferior), rather than equal in quality or efficacy, or both, because:
- the consumer would be keen to ensure the health and well-being of their pet and would assume the Viovet product to be of comparable quality and efficacy because that was not something they would likely want to compromise on;
- the consumer would most likely have found the ad for the VetPlus product based on a recommendation from a vet, rather than by conducting a random search, meaning that they would be even more likely to assume the Viovet product was equal in quality or efficacy, or both; and
- by being offered to “save £[x] per day” and/or to “Swap” to an alternative product, the consumer would (in light of their desire to ensure the health and well-being of their pet) assume that the Viovet product was comparable.
Therefore, overall, the average consumer would interpret the ads as claiming that the Viovet products were comparable in nature, composition, efficacy and/or quality.
Why this matters:
Comparative advertising can be a tricky area and should be approached with caution to ensure a balance between fair competition and intellectual property rights. In this case, the court noted that there is relatively little English case law or other guidance on the topic, so this case may serve as a useful guide for businesses wishing to use this in practice in their advertising output.
