O2 loses ECJ case over rival's use of imagery

MOBILE PHONE company O2 has lost a case in Europe's highest court over the use of bubbles in an advertising campaign by rival Hutchinson 3G.

The European Court of Justice (ECJ) in Luxembourg ruled yesterday that advertisements for the pay-as-you-go service by Hutchinson 3G were legal because they were used to compare O2's prices with theirs and did not confuse consumers.

The court said a company could prevent use of a trademark if four conditions were satisfied:

•if it was used in the course of trade;

•if it was without the consent of the owner;

•if it was for goods that are the same as those for which the trademark was registered;

•if it was used in a way that was misleading for consumers.

Since the last condition was not fulfilled, the case failed.

"The court finds that the proprietor of a registered trade mark is not entitled to rely on his trademark rights to prevent the use, by a third party, in a comparative advertisement, of a sign similar to that mark - where such use does not give rise to a likelihood of confusion on the part of the public," the court said.

"This decision is pro-consumer and pro-competition. It's great news for consumers in Ireland and across Europe," said a spokesman for 3 Ireland.

"3 believes that Irish consumers should always be able to compare the offers available to make sure they can get the best deal."

O2 originally took the case in Britain but lost. Hutchinson 3G argued it only used O2's imagery to compare their prices. O2 admitted the facts in the advertising were accurate but said its bubble trademark was infringed. On appeal, the case was referred to the ECJ to examine the interaction between EU directives on trademarks and comparative advertising.