ECJ gives limited right to stop comparative advertising
13 June 2008
James Nurton, Frankfurt
The European Court of Justice (ECJ) has said that trade mark owners cannot prevent comparative advertising unless it creates a likelihood of confusion among consumers
The Court ruled yesterday in a dispute brought by telecoms company 02, which owns a number of trade marks for bubbles, against rival Hutchison 3G (H3G), which ran an advertising campaign in 2004 that featured similar bubbles and used O2’s logo with price comparisons.
In a ruling in 2006, the UK’s Court of Appeal asked the ECJ to clarify three questions on the interpretation of the 1988 trade mark directive and the 1984 misleading and comparative advertising directive (updated in 1997).
While the trade mark directive gives trade mark owners the right to prevent the use of their trade mark in a comparative advertisement, the 1984 directive is designed to promote comparative advertising and therefore limits that right.
The ECJ stopped short of saying that trade mark rights can never be used to stop comparative advertising. But it said that trade mark...
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