The issue of whether or not the use of a registered trade mark
in a comparative advertisement is an infringement really
shouldn't be as vexed as it is. After all, there is a European
Directive on misleading and comparative advertising which says
quite clearly that a comparative advertisement is lawful, provided
that it doesn't do certain things like create confusion,
denigrate the mark used for comparison, take unfair advantage of
that mark's reputation, or present the advertiser's goods
as replicas or imitations of the goods with which they are being
compared.1
Then there's a recent European Court of Justice (ECJ)
judgement in the O2 case, where the court said that the
use of a registered trade mark in a comparative advertisement does
not infringe the registration if the advert complies with the
provisions of the directive.2 And, on top of that, the
courts never tire of telling us that a registered trade mark is
only infringed when it is being used in a way which
