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Reports of Patent, Design and Trade Mark Cases 2006 123(21-22):699-765; doi:10.1093/rpc/2006rpc29
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© Crown Copyright

[2006] R.P.C. 29

O2 HOLDINGS LTD v HUTCHISON 3G LTD

High Court (Chancery Division)

(Lewison J.): March 2, 3, 6, 8, 9 and 23, 20061

[2006] EWHC 534 (Ch); [2006] R.P.C. 29

Trade marks—Device marks comprising static representation of bubbles or oxygenated water—Comparative advertising—Television advertisement—Infringement—Whether static device mark infringed by moving image—Approach to infringement in such cases—Whether use which referred to proprietor's own goods or services could be infringing use—Whether use took unfair advantage of or denigrated the distinctive character of claimants' marks—Whether compliance with Comparative Advertising Directive a necessary and sufficient requirement for defence to infringement—Whether exact use of registered trade marks necessary for compliance—Guidance as to "indispensability" to make the comparative advertising effective—Validity—Distinctive character—Use in conjunction with other indicia—Inherent and acquired distinctiveness.

Key Words: Comparative advertising • Confusion • Device marks • Distinctiveness • EC law • Infringement • Mobile telephony • Unfair advantage

1 Paragraph numbers in this judgment are as assigned by the court.


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