No bubble trouble for 3


3 has won a four-year battle over an advert comparing prepay prices against O2 which featured O2’s trademark bubbles, in a legal ruling that backs the right of companies across Europe to effectively compare themselves to rivals.

The judgement, handed down today in the European Court of Justice (ECJ), sets legal precedent across the European Union.

The court ruled that advertisers are allowed to use rivals’ trademarks to allow fair comparisons, provided the use does not cause confusion to the public.

3 sales and marketing director Marc Allera said: “This decision is pro-consumer and pro-competition.

“3 believes consumers should always be able to compare the offers available to make sure they can get the best deal. This ruling clears the way for us to put our deals up against the best our competitors can offer and let the consumer decide.

“We respect the brands of our rivals, and as the English courts have noted, we don’t seek to denigrate them. This has always been about the right to make fair comparisons between our deals and those of others.

“The ruling brings clarity to a dispute that has already seen 3’s position backed by the English High Court and the Court of Appeal."

O2 claimed that 3’s use of the bubbles infringed on its own trademark and that its claims to offer cheaper prepay rates were untrue. It later conceded that the claims were true.

However the network maintained that the black and white bubble imagery used in the 3 advertisement confused consumers and took unfair advantage of O2’s trade mark bubbles.
The English High Court dismissed O2’s complaints, saying that 3 had complied with all the requirements for lawful comparative advertising. But the English Court of Appeal felt that because the decision would have an impact on business and advertising across Europe, the case should be referred to the European Court of Justice.

The ECJ held that although the use of another’s trademark in a comparative advert could be prevented by the trademark owner if the use resulted in confusion, the Court ruled that 3’s advert, which highlighted 3’s prepay rates were cheaper than O2’s, was not confusing.

3’s legal defence, advertising and intellectual property practice Lewis Silkin, said the judgement was good news for other companies using comparative advertising.

Lewis Silkin head of department Giles Crown said: “Advertisers are entitled to engage in comparative advertising provided they don’t cause any consumer confusion.

“However if they do, they could still be sued for trademark infringement. In this way the judgment balances the interests of the comparative advertisers and the rival brand owners."

O2 said it would review the ECJ ruling in more detail.

A spokesman said: "We will always vigorously defend our brand. Where we feel that any of our trade marks have been infringed or the public could be misled, we’ll take whatever action we consider necessary."