O2 v Hutchison 3G comparative advertising:European trade mark law beyond compare?

Legislation: Directive 89/104 on trade marks art.5 Directive 84/450 on misleading advertising Directive 97/55 amending Directive 84/450 concerning misleading advertising so as to include comparative advertising Case: O2 Holdings Ltd v Hutchison 3G UK Ltd (C-533/06) [2008] E.C.R. I-4231 (ECJ (1st Chamber)) *Comms. L. 155 Long, long ago a trade mark allowed a craftsman to be identified and held accountable for shoddy goods. Today in the era of the ‘Lovemark,’1 due to extensive advertising hopes and aspirations a lifestyle can be purchased with a brand. For many products a trademark is no longer merely a badge of origin but has a commercial value of its own. Through advertising an emotional attachment is created in the heart of the consumer for particular brands. Brand owners are determined that the value of this attachment be preserved and protected against any encroachment into the aura that has been painstakingly created. Comparative advertising, the allusive use of a mark, is seen by the owners of such emotive brands as likely to jeopardise the character of the brand that they have so carefully nurtured. As they have invested so heavily in creating their concept these owners want to control its use by others. There is an issue however as to how far this control ought to extend when the image is used in the marketing of a rival's goods or services.