Legal ruling against L'Oreal could spark copycat ads

Legal ruling against L'Oreal could spark copycat ads
Legal ruling against L'Oreal could spark copycat ads

LONDON - The Advocates General's opinion in the L'Oreal copycat perfume case could reduce protection for brands. Marketing tells you exactly what you need to know and asks if the decision will spark a wave of copy cat ads.

What has happened?

 The case concerns a comparison chart that compared the smell of perfumes manufactured by Bellure with well-known L'Oreal brands such as Anais Anais and Lancome Tresor. L'Oreal then sued Bellure and its distributors for trademark infringement alleging that the comparison ads diluted the reputation of their trademarks.

 After hearings in the UK courts it was transferred to the European Court of Justice which will consider the opinion of the Advocate General - who has just argued that trade mark owners cannot use trade mark law to stop an advertiser using their trade mark in a comparative advert.

 The AG also found that pointing out your brand has similar qualities to another is allowed and using a trade mark in a comparative advert does not automatically mean the advertiser is taking ‘unfair advantage' of the brand's reputation.

The opinion of the AG gives a good indication of where the law is going. In short brands can no longer rely on a trade mark infringement claim to protect their brand.

 Why should I care?

 If the ECJ riles in line with the AG then advertisers will be more free to compare their products and services with rival brands. According to Emily Devlin, associate at Osborne Clarke, the European Commission is keen to promote comparative advertising to ensure that consumers get the widest possible choice of brands and services. ‘Before the 02 and 3 case there was very little comparative advertising in above the line advertising in the UK but since then there has been lots more from supermarkets to energy providers and car insurance brands,' she says.

 What should I do?

 Its time to read up on comparative advertising; ‘There are a whole list of prohibitions regarding the use of comparative advertising and it sis crucial to be aware of them,' says Devlin. Additionally when using a third party trademark in an ad brands should act ‘within the spirit of the legislation'. In short the Advocate General's advice is not an excuse to engage in mudslinging against rivals or a time to attempt to ride on the coat tails of larger more successful brands.

 Where do brands come unstuck?

 Osbourne Clarke report that the trickiest area to judge is asserting when an advertiser takes advantage of another trade mark owners reputation. Known as ‘the dilution principle' in layman's terms this is simply the idea of riding on the coat tales of a bigger brand to gain exposure.

 What happens next?

 The case will go to the European Court of Justice and a result is expected by the summer.


Before commenting please read our rules for commenting on articles.

If you see a comment you find offensive, you can flag it as inappropriate. In the top right-hand corner of an individual comment, you will see 'flag as inappropriate'. Clicking this prompts us to review the comment. For further information see our rules for commenting on articles.

comments powered by Disqus
Brand Republic Jobs

subscribe now


Lynx tells men not to leave love to fate
HBO captures awkwardness of watching sex scenes with parents
Primark to open first US stores with Boston chosen as flagship location
Marketing spend on the up but a reality check is needed before celebrating
Top 10 ads of the week: Jackpotjoy and BT Broadband fend off Kevin Bacon
Lidl beats Tesco to 10m Facebook fans
Center Parcs ad banned for encouraging parents to take kids out of school
Coca-Cola, Cadbury and Amazon named top brands for targeting youth market
Leaked document shows Nokia to be rebranded as Microsoft Mobile
Nike lays-off hardware staff in move that casts doubt on future of FuelBand
Greenpeace says save the bees or humans will die
What brands need to know about changes to VAT and online downloads in 2015
Jimmy Savile victims urged to claim compensation in new ad campaign
UKIP launches biggest  ad campaign and stirs up 'racist' accusations
Apple boss Tim Cook provides voiceover on ad touting firm's renewed green commitments
John Lewis walks consumers through its history to celebrate 150 years of business
Waitrose boosts content strategy with 'Weekend Kitchen with Waitrose' C4 tie-up
Hottest virals: Cute puppies star in Pedigree ad, plus Idris Elba and Fruyo
Amnesty International burns candles to illuminate new hope
Toyota achieves the impossible by calming angry Roman drivers
Tom of Finland's 'homoerotic' drawings made into stamps
YouTube reveals user habits to appeal to 'older' marketers
Ex-M&S marketing chief Steven Sharp consulting at WPP
Wolff Olins reveals new CEO after Apple poaches Karl Heiselman
Glasgow offers £30,000 prize to best digital idea for 2014 Commonwealth Games
Google's revenues surge but shares drop as it grapples with transition to mobile
Facebook beats Twitter to most 'marketing friendly' social media site crown, says DMA
Fableists believe children like Finn should be outdoors enjoying life
Homebase, Baileys and Camelot join the line-up at Media360
MasterCard renews Rugby World Cup sponsorship to push cashless message