The ECJ Advocate General has opined on key points in the O2/3 “bubbles ad” litigation brought by O2 against Hutchison 3G over a comparative TV ad for “3”. If the ECJ agrees with the Advocate General (and it usually does) this, combined with the weak-knee’d UK implementation of the Unfair Commercial Practices Directive likely in April 2008, could seriously damage the interests of both businesses and consumers faced with unfair comparative advertising.
For Osborne Clarke’s press release on this key development and a link to the Adovocate General’s opinion read on.
ECJ ADVOCATE GENERAL OPINION IN O2/3 "BUBBLES AD" CASE COULD DEAL A BLOW TO BUSINESSES AND CONSUMERS FIGHTING UNFAIR COMPARATIVE ADS
1 February 2008: The AG opinion in the long running case brought by O2 against Hutchison 3G over bubbles images in a 2004 TV ad for the "3" mobile telecoms service could seriously harm the interests of both businesses and consumers faced with unfair comparative advertising according to law firm Osborne Clarke.
The dispute between O2 and Hutchison 3G concerns a comparative ad campaign run by 3G and whether it infringed the trademark rights of O2. Comparative ads are currently governed in Europe by two main sets of rules, the detailed rules in the EU Comparative Advertising Directive and provisions in the EU Trade Marks Directive,which come into play if a competitor's brand is featured.
The AG opinion, if adopted by the ECJ, means that in practice the EU Trade Marks Directive will not apply to abuse of brands in comparative advertising, leaving the Comparative Advertising Directive rules as the main rulebook for knocking copy in Europe. However, because of the way in which the UK Government is currently proposing to bring into force another EU Directive, governing "unfair commercial practices," come April 2008 the now likely O2/3 verdict will mean drastically reduced protection for UK businesses whose brands or products are abused by competitors' ads, with a knock-on negative impact on consumer protection.
Stephen Groom, Head of Marketing and Privacy Law at Osborne Clarke commented:
"On the one hand this development provides potential clarity on the rules governing comparative advertising – one set of rules that provide protection to both business and consumer.
However, the UK Government must consider how this ruling will now be likely to interact with the proposed new "unfair commercial practices" regulations due in force in April 2008, and take action while there is still time.
In most other EU states, not being able to sue your competitor for infringeing your trade mark in an ad will not be the end of the world because there will be continuing rights to sue rivals over knocking copy that breaks either existing misleading and comparative advertising laws or the new "Unfair Commercial Practices" rules.
UK businesses do not have these rights and in practical terms, as illustrated by the O2/3 case, an action for trade mark infringement has been their only viable legal weapon against abuse of their brands in comparative ads.
If the ECJ follows the Advocate General's opinion, even this weapon will be swept away and thanks to the way in which the UK Government currently plans to implement the new "Unfair Commercial Practices" rules, virtually all UK brand owners will have left to curb irresponsible knocking copy will be either a complaint to the Advertising Standards Authority, which has no powers to impose fines or award costs, or trying to persuade trading standards officers or the Office of Fair Trading to bring a prosecution or seek enforcement orders under the Enterprise Act 2002.
Ensuring that businesses have proportionate rights to take action to protect their interests against irresponsible competitors helps consumers as well as traders and takes pressure off already hard-pressed public enforcement bodies. HM Government should act now to allow traders direct rights of action and head off the threat posed by this likely Luxembourg verdict."
For that Advocate General's Opinion in full click here.