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L'Oreal case may result in imitation ad limits

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By The Drum Team | Staff Writer

February 11, 2009 | 3 min read

According to patent and trade mark attorneys Withers & Rogers LLP, a controversial opinion given by the Advocate General may limit the rights of trade mark owners to protect their brands from imitation advertising.

The case, brought by brands from the L’Oreal Group centres around comparative advertising, alleging that Bellure has marketed a range of perfumes by comparing them to brands Tresor, Miracle, Noa Noa and Anaïs Anaïs.

The Presentation of a product as an imitation or replica of another is prohibited by the law relating to comparative advertising.

In the Advocate General’s opinion, it appears that as long as a company’s advert does not state that they have deliberately copied the trade mark owner and does not contain wording such as ‘L'Oreal–style’ fragrance then the imitation/replica prohibition can be avoided. According to Withers & Rogers, the extemely narrow interpretation of the imitation/replica prohibition renders it meaningless.

Fiona McBride, trade mark specialist at the Midlands office of Withers & Rogers LLP, commented: “The Advocate General’s opinion has come as a surprise and in my opinion is unlikely to be followed by the European Court of Justice because it would allow manufacturers to effectively free-ride on competitor’s brands in a way that has previously not been permitted under UK law.”

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“It is difficult to understand how Bellure’s actions could not be deemed as presenting their products as replicas or imitations of the real thing and this is cause for concern for trade mark owners.”

It is thought that if the European Court of Justice follows the Advocate General’s opinion then it is likely that the case will go in favour of Bellure when the case is returned to the UK Courts.

McBride concluded: “While there is an argument that it is in the interest of consumers to have information that allows them to compare products, there must be limits and companies should not be allowed to use the trade marks of others, without due cause, simply to gain a commercial advantage.”

A ruling is expected in the near future.

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