Home | Databases | WorldLII | Search | Feedback Edited Legal Collections Data

Jong, Philippe de --- "Comparative Advertising in Europe" [2006] ELECD 233; in Phillips, Jeremy (ed), "Trade Marks at the Limit" (Edward Elgar Publishing, 2006)

Book Title: Trade Marks at the Limit

Editor(s): Phillips, Jeremy

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845427382

Section: Chapter 5

Section Title: Comparative Advertising in Europe

Author(s): Jong, Philippe de

Number of pages: 18

Extract:

5. Comparative advertising in Europe
Philippe de Jong

1. INTRODUCTION
The purpose of the present chapter is to give a concise overview of the co-exis-
tence of comparative advertising and trade mark legislation. Reduced to one
question, the title of this chapter reads: to what extent is comparative adver-
tising tolerated as a fair use of another's trade mark? First, the relevant legal
provisions will be briefly examined. Secondly, the case law giving guidance
on the interpretation of these provisions will be given more extensive treat-
ment.


2. TRADE MARK LAW
In 1988 the European Community undertook the first initiative to harmonise
the often diverging trade mark laws of the EU Member States. The aim of this
initiative was to approximate these laws rather than to harmonise them fully.
This initiative led to the Trade Mark Directive (TMD)1 of 21 December 1988.

2.1 The Exclusive Rights of the Trade Mark Proprietor

According to the TMD2 a registered trade mark confers upon its proprietor the
exclusive right to prevent all third parties without his consent from using in the
course of trade3

(a) any identical sign in relation to goods or services identical with those for
which the trade mark is registered;



1 First Council Directive 89/104 of 21 December 1988 to approximate the laws
of the Member States relating to trade marks, OJ L 40, 11 February 1989, p. 1.
2 As well as to the Community Trade Mark Regulation (Council Regulation
40/94 of ...