The ruling was issued today in response to a case brought by L’oreal in the UK against companies producing similar smelling and packaged perfumes to its brands, which include Anais-Anais and Noa.
The case was referred to the ECJ by the UK High Court for clarification on the interpretation of European directives covering trade marks and misleading and comparative advertising.
L’oreal brought the case after companies such as Bellure marketed perfumes as being cheap imitations of the multinational’s luxury perfume brands.
Europe’s highest court ruled that Bellure and others are “riding on the coat-tails” of L’oreal’s prestigious brands to gain market advantage and are breaking the law.
The ruling ends inconclusive legal deliberation over whether brand owners could allege imitators gained unfair advantage in infringement cases.
“This ruling means any advert that goes beyond a straightforward comparison on objective and factual criteria could now fall foul of the law and leave advertisers open to a claim for trade mark infringement,” says Theo Savvides, head of intellectual property at law firm Osborne Clarke.
“While we’ll continue to see the likes of price comparison websites and supermarkets benefiting from the comparative advertising regime, as they appeal to the customer’s search for good value and service, new entrants to market must be wary of comparing their products or their products’ characteristics to those of established brands,” he adds.