Comparative Ads: EU Court Gives Provisional Thumbs-Up

04 February 2008

LUXEMBOURG: The European Court of Justice signalled the beginning of the end in a four-year skirmish between cellphone colossi O2 (owned by Spanish telco Telefonica) and Hutchison 3G.

The former initially filed a complaint against the latter in 2004, alleging infringement of its trademark bubbles by displaying lookalikes alongside the O2 brand name in a series of Threepay ads on TV.

These fragile vesicles, argued O2, were part of its own distinctive brand image, developed in a long-running and costly marketing campaign. 

It ain't necessarily so, opined Paolo Mengozzi, a European Court of Justice advocate-general, who ruled last Thursday that the offending ad, implying Hutchison's Threepay product was cheaper than its rival's, did not breach European advertising rules.

Mengozzi, whose ruling must now be ratified by the Court in full session, said European Union legislation permits the use of a competitor's trademark in a comparative ad – provided it didn't do so to gain unfair advantage.

The full court accepts the advice of its advocate-generals in about eight out of ten cases, and is expected to rule on the O2-3G dispute later this year.

The eventual decision will be keenly awaited by European agencies, marketers and media-owners.

Data sourced from Financial Times; additional content by WARC staff