Comparative Advertising in UK Law

Indeed the Comparative Advertising Directive (97/55/EC) rather confirms the position. It is not in dispute that a comparative advertiser will be acting in accordance with “honest practices” provided he does so in accordance with the conditions of Art 3a of the Misleading Advertising Directive (84/450/EC). One of those conditions is that the advertising must not be misleading.

The general “threshold” which must be crossed by the claimant is that he will probably succeed at the trial. I do not see why that should not be the general rule for trade mark infringement in a comparative advertising case. A man who finds his trade mark disparaged by a rival trader in a comparative advertisement can obtain a prior restraining order only if he can show that it is more likely than not that the disparagement is wrong and misleading.

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.

These criteria are plainly drawn from the Comparative Advertising Directive. In effect, therefore, honest practices are those which comply with that Directive. As I read this, use of an identical sign cannot be in accordance with honest practices if it takes unfair advantage of the distinctive character or repute of a registered trade mark. Nor can use of a trade mark fall within section 10 (6) unless it passes the same test.

Fifthly, it is clear from the case law of the Court of Justice surveyed above that the average consumer test applies in a number of different areas of unfair competition law (using that term in a broad sense).

In my judgment the general position is now clear. In assessing the likelihood of confusion arising from the use of a sign the court must consider the matter from the perspective of the average consumer of the goods or services in question and must take into account all the circumstances of that use that are likely to operate in that average consumer's mind in considering the sign and the impression it is likely to make on him. The sign is not to be considered stripped of its context.

To the contrary, if, having regard to the perceptions and expectations of the average consumer, the court concludes that a significant proportion of the relevant public is likely to be confused such as to warrant the intervention of the court then we believe it may properly find infringement.