Fri 15th Sep 2017
How can the UK laws on misleading marketing impact on the use of trade marks?
James Cornish, trade mark attorney at Page White and Farrer discusses the current UK laws on misleading marketing and how these laws could impact on the way trade marks are used.
Comparative advertising in sales to both consumers and other traders is controlled by regulations. It permits comparative advertising provided:
- it is not misleading;
- it compares products meeting the same needs or intended for the same purpose;
- it objectively compares one or material features of the products;
- it does not create confusion between the advertiser and competitor or between tradenames;
- it does not discredit or denigrate;
- it does not take unfair advantage of reputation; and
- it does not present products as imitations or replicas of products bearing a protected trade mark.
Comparative advertising can be a misleading action or omission which is in breach of the consumer marketing regulations, if it causes a consumer to take a different transactional decision. Does it contain false information, is it likely to deceive, does it create confusion, or is material information omitted?
Examples of comparative advertising include:
- Omitting information to indicate that one trader’s goods are made of real leather and the other trader’s goods are made of false leather; and
- selling imitation Tag Heuer and Rolex watches from £100 as that would involve presenting goods as imitations of goods with a protected trade mark.
The consumer marketing rules also prevent misleading actions concerning marketing (including comparative advertising) which create confusion with any products, trade marks, trade names or other distinguishing marks of a competitor, provided it causes, or is likely to cause, the average consumer to take a transactional decision they would otherwise not have taken.
A trader names or brands a new bag so as to very closely resemble the name and brand of a competitor's bag. This could amount to breach if an average consumer would take this action.
The 31 prohibited practices in consumer marketing include promoting a product similar to a product made by a particular manufacturer in such a manner as deliberately to mislead the consumer into believing that the product is made by that same manufacturer, when it is not.
Similar cosmetic packaging that deliberately misleads as to origin.