What has happened?
The case concerns a comparison chart that compared the smell of perfumes manufactured by Bellure with well-known L'Oreal brands such as Anais Anais and Lancome Tresor. L'Oreal then sued Bellure and its distributors for trademark infringement alleging that the comparison ads diluted the reputation of their trademarks.
After hearings in the UK courts it was transferred to the European Court of Justice which will consider the opinion of the Advocate General - who has just argued that trade mark owners cannot use trade mark law to stop an advertiser using their trade mark in a comparative advert.
The AG also found that pointing out your brand has similar qualities to another is allowed and using a trade mark in a comparative advert does not automatically mean the advertiser is taking ‘unfair advantage' of the brand's reputation.
The opinion of the AG gives a good indication of where the law is going. In short brands can no longer rely on a trade mark infringement claim to protect their brand.
Why should I care?
If the ECJ riles in line with the AG then advertisers will be more free to compare their products and services with rival brands. According to Emily Devlin, associate at Osborne Clarke, the European Commission is keen to promote comparative advertising to ensure that consumers get the widest possible choice of brands and services. ‘Before the 02 and 3 case there was very little comparative advertising in above the line advertising in the UK but since then there has been lots more from supermarkets to energy providers and car insurance brands,' she says.
What should I do?
Its time to read up on comparative advertising; ‘There are a whole list of prohibitions regarding the use of comparative advertising and it sis crucial to be aware of them,' says Devlin. Additionally when using a third party trademark in an ad brands should act ‘within the spirit of the legislation'. In short the Advocate General's advice is not an excuse to engage in mudslinging against rivals or a time to attempt to ride on the coat tails of larger more successful brands.
Where do brands come unstuck?
Osbourne Clarke report that the trickiest area to judge is asserting when an advertiser takes advantage of another trade mark owners reputation. Known as ‘the dilution principle' in layman's terms this is simply the idea of riding on the coat tales of a bigger brand to gain exposure.
What happens next?
The case will go to the European Court of Justice and a result is expected by the summer.
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