ECJ On O2 Bubbles Case: Comparative Advertising Can Infringe Trade Mark Rights

Contrary to the Advocate General's opinion, the ECJ has ruled that a trade mark owner can bring a trade mark infringement action to prevent the use of its trade mark in comparative advertising, provided that it can show that there is a likelihood of confusion as to the origin of goods/services. If, however, use of the trade mark complies with all of the rules set down in the Comparative Advertising Directive this will be a defence to trade mark infringement and such use cannot be prevented. Although not express, the ruling also suggests that identical and similar marks may be used in comparative ads, even if such use is not indispensable in making the comparative ad effective.