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O2 Loses Legal Action Against Hutchison 3G UK

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The European Court of Justice (ECJ) has ruled that Hutchison 3G UK did not breach trademark law when it used a marketing icon belonging to rival UK operator, O2 in one of its advertisements. O2 uses bubble images in a host of ways and is the proprietor of two British national trade marks which consist of a static picture of bubbles.

The action was based on a series of television adverts run by Hutchison in March 2004 which started with the O2 trademark and a detail of call costs - then fading to Hutchison's 3 brand with its comparative costs.

O2, which is owned by Spain's Telefonica took Hutchison 3G UK to court in the UK claiming a breach of trademark.

In the course of the proceedings, O2 subsequently abandoned the claim of infringement of the O2 trade marks and accepted that the price comparison was true and that as a whole, the advertisement at issue was not misleading in any way and that, in particular, it did not suggest any form of trade connection between O2 and 3. The average member of the public would see the use of 02 and the bubbles as a reference to 02 and its imagery and realise that this was an advertisement by a trade rival, 3, claiming that its own service cost less.

The action for infringement, now directed only against the use of the bubbles images in the advertisement at issue, was dismissed by judgment of 23 March 2006. O2 appealed the judgment and it was later passed to the European Court of Justice.

An advisory notice was published by the court in January which suggested that O2 would lose its legal action - and the court has now issued its final ruling confirming that competitors can use trademark logos for comparative advertising where confusion about who is providing the advert is not apparent.

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