Journal Article

The new consumer and business protection regulations: another string to the brand owner's bow?

Joel Smith and Rachel Montagnon

in Journal of Intellectual Property Law & Practice

Volume 4, issue 1, pages 33-38
Published in print January 2009 | ISSN: 1747-1532
Published online November 2008 | e-ISSN: 1747-1540 | DOI: http://dx.doi.org/10.1093/jiplp/jpn210
The new consumer and business protection regulations: another string to the brand owner's bow?

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Legal context

This article assesses the impact of The Consumer Protection from Unfair Trading Regulations 2008 (CPRs) (implementing the Unfair Commercial Practices Directive) and The Business. Protection from Misleading Marketing Regulations 2008 (BPRs) (implementing the consolidated and codified Misleading and Comparative Advertising Directive) on areas of marketing and advertising in which IP rights often become involved and the impact of the recent ECJ decisionon their application in the O2 v Hutchison 3G referenceby the Court of Appeal.

Key points

The CPRs govern advertising and promotional activities aimed at consumers. Much of the consumer and business protection legislation previously scattered amongst various Acts has been repealed and replaced by elements of the BPRs or CPRs. In total, 36 Regulations and Orders and 41 Acts are affected. The BPRs now govern misleading marketing and comparative advertising, previously dealt with under the Control of Misleading Advertising Regulations 1988. The article looks at how these Regulations may be applied in situations which interested parties currently attempt to resolve using trade mark or passing off laws.

Practical significance

The new Regulations are aimed at the protection of consumers and businesses from unscrupulous marketing and trade promotion practices which affect their economic behaviour. Thirty-one practices are specifically identified as automatically falling foul of the Regulations. Businesses will need to review their practices to avoid the possibility of criminal penalties including fines and imprisonment for consenting, conniving, or reckless officers of businesses involved in such practices.

Until the ECJ decision in O2 v Hutchison 3G, it had been thought (from Jacob LJ's finding in his reference to the ECJ in this case) that trade mark law had no role to play in comparative advertising as it was specifically provided for under the Comparative Advertising Directive and hence under the BPRs. Since these did not provide an individual right of action (the OFT or Trading Standards alone may enforce), it left trade mark owners with little muscle in comparative advertising situations. However, the ECJ made clear that where practices fail to satisfy the criteria set out in the Directive for legitimate comparative advertising, trade mark law may be invoked as a remedy. This will be a relief to major brand owners for whom comparative advertising is commonly a concern.

Journal Article.  4126 words. 

Subjects: Arbitration ; Intellectual Property Law

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