O2’s defeat in its High Court battle against rival 3 last week sets a significant precedent for companies wanting to run comparative advertising campaigns, according to a leading trademark attorney.
Mobile operator 3 had been accused by O2 of confusing the public and infringing a trademark by using bubble imagery in a 2004 advertising campaign. But a judge ruled that the use of bubbles was allowed under the EU’s Comparative Advertising Directive, which says trademark infringement is justifiable if it legitimately illustrates a difference in price or quality of service, and is fair and honest.
Mike Lynd, a partner at trademark and patent attorneys Marks & Clerk, says: “3’s victory may well become a yardstick for companies wishing to go as far as possible in positioning themselves comparatively against a competitor. As long as the comparisons used are fair and honest, using a competitor’s trademark to illustrate a comparative advantage to customers can be justifiable.” O2 argued that the bubbles in the 3 ad were improperly presented because the background was a “negative” black rather than the blue used in O2’s own ads.
Graeme Oxby, 3 marketing director, adds: “O2 has tried to stop us using effective comparative advertising, but fortunately for the UK consumer it has failed. Our ad was a legitimate way for us to highlight the great value we offered in comparison to O2.”