Transposition into UK law of the EU Unfair Commercial Practices Directive has already slipped over three months after the Brussels deadline. Now it has been put back again and the new in force date will apply to both the Consumer Protection from Unfair Trading Regulations and the Business Protection from Unfair Trading Regulations. Stephen Groom has more details and the new date for your diaries.
Topic: Consumer protection
Who: HM Government
Where: Whitehall
When: 27 February 2008
Law stated as at: 28th February 2008
What happened:
The Department for Business, Enterprise and Regulatory Reform ("BERR") has finally given up the unequal struggle to bring the EU Unfair Commercial Practices Directive into force in the UK only four months after the 12 December 2007 deadline set by Brussels.
It has now been announced that instead of the previously vaunted 6 April 2008, the UK's advertisers and marketers (in other words most of UK Plc) will have another seven weeks to prepare for these seismic changes to UK consumer protection law. Monday 26th May 2008 now seems to be the final, final in force date.
As already trailered, this new date will see the coming into force of two sets of Regulations. There will be the Consumer Protection from Unfair Trading Regulations 2008 ("CPRs") and alongside these will be the misnamed Business Protection from Misleading Marketing Regulations 2008 ("BPRs").
Title of false description law is a false description
Why do we say "misnamed"? Because, bizarrely for a measure that deals with misleading descriptions, the "Business Protection" part of the title is itself a misleading description. Far from being just a measure dealing with the protection of businesses as opposed to consumers, a significant part of the BPRs deals with a particular type of advertising regardless of whether it is aimed at businesses or consumers.
The part in question deals with comparative advertising and effectively replaces the Consumer Protection from Misleading Advertisements Regulations 1988, as subsequently amended so as to extend to comparative advertising.
The end result of this anomaly is that advertisers auditing their marketing communications for compliance with the new regulations (which effectively replace no less than 31 laws and regulations including the Trade Descriptions Act 1968 and the misleading price indications provisions of the Consumer Protection Act 1986) will need to consult both the CPRs and the BPRs.
UK Government's unwitting attack on trade mark rights
Another key, but so far little-heralded effect of the way in which the UK is implementing this Directive will be a serious erosion of the rights conferred by trade mark registration.
This has come about as a result of the coincidental confluence of these Regulations and the final, ECJ denoument of long-running litigation over a comparative TV ad aired by mobile network "3" in the summer of 2004.
This case, involving rival O2, has been much reported on marketinglaw. For these purposes the crucial recent development has been the publication of the Advocate General's Opinion, which is normally adopted by the ECJ.
Revolutionary position
This Opinion takes the revolutionary position that because there are separate, comprehensive regulations in place controlling the practice, the use of a competitor's registered trade mark in an advertisement in order to make a comparison should not be covered by the Trade Marks Directive at all and hence should not ever be a trade mark infringement.
If the ECJ takes the same position, it seems likely to mean that registered trade mark owners will not be able to even contemplate or threaten trade mark infringement proceedings against a competitor who uses their brands in even the most misleading comparative advertisement.
No weapons left for brand owners against knocking copy?
What weapon will UK brand owner have left? The answer is that if the UK Government had bowed to considerable pressure put on it during consultations on the implementing of the Unfair Commercial Practices Directive ("UCPD"), there might well have been considerable scope for protective action.
This would have come about by the BERR taking up the option left fully open to it in the UCPD and giving traders as well as trading standards officers and the OFT the right to take action in the courts against breaches of the new Regulations. This is the position already in the context of similar laws in Germany and other EU states.
However the BERR has chosen not to do this, thus leaving brand owners faced with competitors' misleading knocking copy with the less than attractive option of trying to persuade their local TSO or the OFT to intervene in what will likely be seen as an intra industry dispute on which public resources should not be wasted.
Why this matters:
The 7 week push back on the in force date for these new Regulations will surely be welcomed by UK advertisers and marketers who may be only now realising that these key new regulations cover a lot more than just sharp practices.
Marketinglaw will continue to report on the less obvious impact of the new rules over the coming months. Hopefully this process will be helped by the publication of the new Regulations themselves, which were still not available in their final form at the time of writing this article, 29th February 2008.
The brand damaging effect of the BPRs and the anticipated O2/3 case judgment will be less welcome, but brand owners may have been slightly heartened by the Government's recent indication that in three years' time they will review the possibility of allowing traders to enforce the new Regulations by direct action.
