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The High Court has signalled a tougher stand against advertisers

that play fast and loose with the facts when publicly knocking their

rivals.

Lawyers said the ruling in the legal battle between the vacuum cleaner

manufacturers, Electrolux and Dyson, over their comparative advertising

claims is a clear warning about the dangers of overstepping the

mark.

In a tit-for-tat hearing, Justice Jonathan Parker dismissed the

companies’ actions against each other for malicious falsehood during

their 1997 advertising war.

But he declared both guilty of infringing each other’s trademark because

their dishonest claims had lost them their legal protection.

This is the first time a court has ruled that pieces of comparative

advertising have infringed the 1994 Trademarks Act. It is being

interpreted as a change to the more usual laissez-faire attitude the

courts have taken in such cases, particularly in the so-called

’telephone wars’ involving companies such as Vodafone and Orange.

Philip Circus, the Newspaper Society’s advertising law consultant, said:

’This is a sharp reminder to the industry. Advertisers have not been as

careful as they should and have become blase.’

The 1994 act allows advertisers to feature a competitor’s trademark as

long as the information in the ad is fair, honest and not misleading to

consumers. Failure to comply renders an offender vulnerable to an action

for copyright infringement.

The High Court action was sparked by a Dyson ad comparing the suction

power of its DCO1 upright cleaner with the Electrolux Powersystem (EPS)

range. The judge ruled that Dyson had carried out ’unfair’ dust

collection tests using neat kaolin powder which seriously exaggerated

the clogging an EPS machine would suffer during ordinary domestic

use.

Meanwhile, Electrolux produced ads comparing the DCO1 unfavourably with

the EPS and wrongly implied that the suction power of the EPS was

superior at all times.