• UK NEWS

    New Comparative Advertising Regime in the UK

    In April, the UK brought the European Union’s Comparative Advertising Directive (97/55/EC) into effect by the introduction of The Control of Misleading Advertisements (Amendment) Regulations 2000. These new Regulations define a comparative advert as one which "…in any way, either explicitly or by implication,…identifies a competitor or goods or services offered by a competitor".

    Under this new regime, a comparative advert will be permitted in the UK if it meets the following conditions:

    • It is not misleading.

    • It compares goods or services for the same needs or purpose.

    • It objectively compares one or more of the properties, including the price, of the goods or services.

    • It does not create confusion in the marketplace.

    • It does not discredit or denigrate the trade marks, trade names, goods or similar of a competitor.

    • In relation to designations of origin, the comparison must be between products having the same designation of origin.

    • It does not take advantage of the reputation of a trade mark, trade name or similar of a competitor.

    • It does not set out to suggest that a product is an imitation or replica of an original product.

     

    There are also special provisions for comparative adverts which include special offers.

      

    Comment

    Through a series of High Court decisions, see Barclays Bank plc v. RBS Advanta (1996 RPC 307), Vodaphone Group plc v. Orange Personal Communications Services Ltd (1997 FSR 34), British Telecommunications plc v. AT&T Communications (UK) Limited (1997 EIPR (5) D-134) and Cable & Wireless Plc v. British Telecommunications Plc (1998 FSR 383) the English judiciary had used the provisions of Section 10(6) of the Trade Marks Act 1994 to produce a fairly liberal regime under which comparative adverts were allowed provided they were not contrary to honest commercial or industrial practices. It will be interesting to see how the apparently more restrictive regime introduced under the Control of Misleading Advertisements Regulation will be interpreted by the Authorities given the responsibility for considering complaints. Given the historically more conservative approach of, for example, the French and German Authorities to comparative advertising, it is likely that the European Court of Justice will be called in at an early stage to try to define a "European" approach to these matters.