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Comparative advertising, where a product is advertised in a way that references a competitor's product, is only permitted subject to conditions laid down in Regulation 4 of the Business Protection from Misleading Marketing Regulations 2008. In a recent case in which two companies argued that advertisements on a competitor's website breached the Regulations and amounted to trade mark infringement, the High Court had to consider as a preliminary issue what message the competitor's advertisements conveyed.
One of the claimant companies owned trade marks in relation to various veterinary products; the other was the authorised supplier of those products. The products were designed to improve the health and wellbeing of animals and were sold to veterinary practices, which sold them on to pet owners, usually following a consultation and recommendation. The authorised supplier claimed that the products had a high reputation in the UK market.
The competitor's website offered the companies' products for sale as well as its own. When customers selected one of the companies' products they would see advertisements for products offered by the competitor, including messages such as 'Save £[x] per day' or 'Swap and Save [£]'.
Under Regulation 4(d) of the Regulations, comparative advertising must objectively compare one or more 'material, relevant, verifiable and representative features' of products, which may include price. The companies argued that the messages on the competitor's website implied that its products were of comparable quality and efficacy. The competitor maintained that the messages would be understood as comparisons on price only, and that the average consumer would not assume that a cheaper alternative product was as effective.
Ruling in favour of the companies, the Court noted that a consumer who saw the messages would have searched for one of their products, so would be likely to assume that the alternative offered by the competitor was similarly effective. It observed that pet owners would be unwilling to compromise on the quality of products for their pets, particularly as they would probably have searched for the companies' products following a recommendation from a vet. The Court concluded that 'Save [£x] per day' implied that the alternative product being offered was equally beneficial but cheaper, and that a consumer seeing the word 'swap' would assume they were being offered something equivalent.
