Advertising that in any way identifies a competitor, or a competitor’s product, is known as comparative advertising.
With comparative advertising, there is a fine line between encouraging fair competition and respecting intellectual property rights.
This issue arose in the case of Gibraltar (UK) Ltd & Anor v Viovet Ltd, which concerned nutrients for pets. The first claimant is the owner of the trade marks in question, and the second claimant (VetPlus) is the authorised supplier of the first claimant’s brands.
The defendant (Viovet) retails its own pet nutrient products on its website, as well as third party products, including VetPlus products.
Viovet ran various advertising campaigns that included VetPlus’ products. When these advertisements showing a VetPlus product was clicked on by a customer, the customer had the option to ‘Add to Basket’ or, they could click the red button which said ‘Save £[x] per day’, ‘Swap and Save £[x]’ or ‘Try something new’, which would take the customer to one of Viovet’s own branded products.
If the customer opted to proceed with the VetPlus product and add to basket, a pop up then showed, with the selected VetPlus product alongside one of Viovet’s own branded products, with their respective prices. Viovet’s products were the cheaper option in each instance. The customer could then choose to ‘Swap and Save’, or to proceed with the original VetPlus selection.
There was also a webpage which sold one of VetPlus’ products, where a button that said ‘Read More’ re-directed to an advert of a Viovet product, including text stating that this product ‘contains trusted ingredients found in [the VetPlus product]’ and that it was a ‘more cost-effective option’ than the VetPlus product.
It was claimed that Viovet used the first claimant’s trade marks for the purposes of comparative advertising in a way that infringed the trade marks.
The preliminary issue was whether the advertisements demonstrated to the average consumer that the products were comparable in quality, or whether the advertisements were understood by the average consumer to be simply comparing the prices of the products, rather than the quality.
The judgment set out that comparative advertising can be permitted when the following criteria are satisfied:
- The advert is not misleading
- It compares products intended for the same purpose
- It objectively compares the products (e.g., compares the prices)
- It does not create confusion between the two brands
- It does not discredit the other brand
- It does not take unfair advantage of the reputation of a brand
- It does not present products as replicas/imitations of other branded products
Therefore, if all the above are met, there will not be infringement.
The decision focused on point c. above, which encompassed both express and implied comparisons. It was held that the adverts expressly compared the prices of the products.
The defendant argued that there were no implied comparisons; the adverts compared price only and should be taken at face value. In contrast, the claimants contended that the adverts suggested or implied that the products are comparable in terms of quality.
The Judge rejected Viovet’s argument that the average consumer would assume the cheaper product was not the same as the more expensive (and potentially of inferior quality) due to the price difference. Conversely, when a consumer is offered an alternative product, you assume that it can function adequately as an alternative, and is therefore of comparable quality and efficacy, particularly in a field such as pet nutrition. The assumption is actually that you are being offered something equally beneficial for your pet, at a cheaper price, particularly given the use of language such as ‘swap’.
The decision is only in relation to the preliminary issue, therefore we wait until the second trial for a determination of the extent to which the comparisons are misleading.
The case highlights that careful consideration should be given to whether a competitor should be mentioned in an advertisement. It is not straightforward where the line of infringement is, and a solicitor should be consulted for case-specific guidance.
