Media Advertising in UK Law

In summary, the necessity for restrictions on political/social advocacy broadcast advertising outside elections periods has been convincingly shown. It is necessary to protect the rights of others through preventing undue access to the broadcast media based on willingness and ability to pay. At root it supports the soundness of the framework for democratic public debate. The broadcast media remain pervasive and potent throughout the period between elections.

But it is highly desirable that the playing field of debate should be so far as practicable level. This is achieved where, in public discussion, differing views are expressed, contradicted, answered and debated. The rights of others which a restriction on the exercise of the right to free expression may properly be designed to protect must, in my judgment, include a right to be protected against the potential mischief of partial political advertising.

I do not think the full strength of this argument was deployed in VgT. Hypothetical examples spring readily to mind: adverts by well-endowed multi-national companies seeking to thwart or delay action on climate change; adverts by wealthy groups seeking to ban abortion; or, if not among member states of the Council of Europe, adverts by so-called patriotic groups supporting the right of the citizen to bear arms.

The weight to be accorded to the judgment of Parliament depends on the circumstances and the subject matter. Thirdly, legislation cannot be framed so as to address particular cases. A general rule means that a line must be drawn, and it is for Parliament to decide where. The drawing of a line inevitably means that hard cases will arise falling on the wrong side of it, but that should not be held to invalidate the rule if, judged in the round, it is beneficial.

So far as a requirement for a change in economic behaviour is concerned, the CJEU has held that proof that the use of the sign is or would be detrimental to the distinctive character of the trade mark requires evidence of a change in the economic behaviour of the average consumer of the goods or services for which the trade mark is registered or a serious likelihood that such change will occur in the future: see Case C-383-12 Environmental Manufacturing LLP v OHIM (judgment of 14 November 2013) (at [34]–[43]).

I leave the question of arguable infringement on ordinary principles to be dealt with after I have considered whether they can take advantage of what for conciseness I call the comparative advertising defence. This I think is a matter for an appreciation of the advertisement as a whole. When one watches the advertisement, the voice-over associates the word or words "O2" with the bubbles almost immediately.