Comparative Advertising latest developments

Supermarkets need to compete, as with every other business, to win customers. Competition is a good thing; it allows consumers to get the best price possible and keeps the supermarkets on their toes at the same time. Comparative advertising therefore is an excellent tactic in doing this. It allows an advertisement to show the price difference between one or more supermarkets products so that the money conscious consumer can save as much money on their shopping bill as possible.

Comparative advertising is allowed under the European Directive 2006/ 114, as long as it is accurate. Misleading comparative advertising warps competition and defeats the purpose of allowing comparative advertising in the first place. This form of advertising is very much a gray area of the law at the moment and needs clarification. An example to explain this is the Trade Marks Directive 2008/95 which forbids the use of another’s trade mark without express consent. This therefore seems to be a direct conflict between the two directives. The Directive does permit comparative advertising in a loose way where it is used for honest purposes.

This is not the first time that this has happened. In O2 v Hutchinson 3G, the European Court of Justice (CJEU) held that although trade mark law is still relevant in this area there will be no trade mark infringement as long as the requirements of the Comparative Advertising Directive are fulfilled.

Just to throw a spanner in the works, trade mark owners may still have a valid case against unauthorised use of their trade mark according to the case of L’Oreal and Bellure. In this case, it was stated that where a comparative advertisement took unfair advantage of the reputation of the others’ brand then the Comparative Advertising Directive will not be complied with, even if Article 6 of the Trade Marks Directive applies.

It would seem then that where a smaller and lesser-known store advertises the trade marks of a well known store in a comparative advert, the larger store’s name may help draw more attention to consumers, and as a result, attract more consumers to shop at the lesser-known store. Therefore in the case of Aldi and Dunnes Stores, Aldi is the more widely recognised of the two, and it argues that by placing the Aldi logo on its adverts, Dunnes Stores have been using the logo and thereby infringing their trade mark on grounds of unfair use.

We will have to wait and see.

This article was written by Tom Mould, an under-graduate student of Law

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