The extent of the impact of the Human Rights Act on different areas of law is often speculated upon, however, it may still come as a surprise to some that the Act has an impact on issues of comparative advertising. The High Court in two recent decisions considered the impact of the Human Rights Act in deciding that it was not prepared to grant an injunction to prevent publication of this type of advertising. The Court concluded that the Act applied to comparative advertising and for it to grant an injunction where a human right may be affected, it must be satisfied £that the applicant is likely to establish that publication should not be allowed.£ This is slightly more stringent than the usual test, which is whether a £real prospect of success£ is shown.
Further, it was stated in Apollo that the opinion expressed by Jacob LJ in the Court of Appeal decision in O2 Holdings Ltd & another v Hutchison 3G Ltd, that use of a trade mark in comparative advertising is not £use£ for the purposes of trade mark infringement under sections 10(1) and 10(2) of the Trade Marks Act 1994, is not law. However, in the absence of any decision from the ECJ as to the application of these sections to comparative advertising, the claimant was not able to establish that was is £likely£ to succeed at trial.
These cases will make it considerably more difficult to obtain interim injunctions in comparative advertising cases.
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