Is comparative advertising use covered by Article 5 of the TM Directive?
Under Article 5(1) and (2) of the TM Directive a registered trade mark owner has exclusive rights, under certain conditions, to prevent third parties from using in the course of trade without consent any sign which is identical with, or similar to, his trade mark. Therefore, it follows that use by an advertiser, in a comparative advertisement, of an identical or similar sign to the mark of a competitor to identify the goods and services offered by that competitor, can amount to use under Article 5(1) and (2) and so be an infringement. However, 3G argued that as comparative advertising used a sign only to indicate the goods or services of the third party trade mark owner, the essential function of the trade mark (i.e. as a guarantee of origin) was not affected by such use by a competitor and thus Article 5 was not “engaged”. The ECJ concluded on this issue that the use by an advertiser in a comparative advertisement of a sign identical with or similar to the mark of a competitor for the
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- Is comparative advertising use covered by Article 5 of the TM Directive?
