How much scope do advertisers have to use comparative trademarks? Ask Hamish Porter & Louisa Albertini
Comparative advertising, where goods or services offered by a competitor are identified by reference to a registered trade mark, can cause great concern to trade mark owners as their competitors normally seek to make unfavourable comparisons with their own goods or services, or to take advantage of being associated with the market leader's brand. The UK courts have recently requested guidance from the European Court of Justice (ECJ) on the extent to which comparative advertising can be used.
Marking one's territory
The Trade Marks Directive (TMD), (First Council Directive 89/104/EEC of 21 December 1988, to approximate the laws of the member states relating to trade marks), provides that a trade mark owner is entitled under certain conditions to prevent third parties from using a sign which is identical or similar to his trade mark, including use in advertising. In contrast, the Comparative Advertising Directive—Council Directive 84/450/ EEC of 10 September 1984 relating to the approximation of the laws, regulations and administrative provisions of the member states concerning misleading advertising (as amended by the
