O2’s long-running dispute with 3 over the use of its bubbles trademark was brought to an end by the European Court of Justice today, with its ruling that O2 was not able to stop rivals using trademarks in comparative advertisements.
In 2004, 3 launched a campaign for its ‘Threepay’ pay-as-you-talk services with a TV ad that compared its services with O2’s with moving black-and-white bubble imagery, followed by a message that 3’s deals were cheaper.
O2, which trademarked two images of bubbles, had its complaint of trademark infringement dismissed by the High Court. The operator’s subsequent appeal to the Court of Appeal was passed up to the ECJ because of the possible wider implications of the case for European companies.
The ECJ said that it found in favour of 3 because it felt the advert did not confuse customers.
It said: ‘The advertisement, as a whole, was not misleading and, in particular, did not suggest that there was any form of commercial link between O2 and H3G.’
Giles Crown of law firm Lewis Silkin, which acted on behalf of 3, said: ‘The judgment confirms 3’s right to engage in robust but fair advertising.
‘This is also great news for other advertisers engaged in comparative advertising. They are entitled to do so provided they don’t cause any consumer confusion. In this way the judgment balances the interests of the comparative advertisers and the rival brand owners.’
A spokesman for O2 said the operator would review the ECJ ruling in more detail.
‘We have always, and will continue to defend our brand and where we feel any of our trademarks have been infringed we will take whatever action is necessary,’ he said.
The judgment is expected to set a precedent that will allow companies to use rivals’ logos in legitimate comparative advertising.