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. 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.

But the issue must be tested with reference to objects with which one may not be sympathetic. 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]).

It is right that bubbles, although bubbles by no means identical to the bubbles in this advertisement, have been used extensively by the claimants and I am left with what may only be a lawyer's strong suspicion that the defendant have used the bubbles as a way of emphasizing the unfavourable nature of the comparison which is being made, an impression which is reinforced by the fact that the bubbles appear in black and white, or more accurately in shades of dark grey, rather than the rather more cheerful blue colour of the claimants' own advertisements.