Gibraltar (UK) Limited & Anor v Viovet Limited

Comparative advertising must be assessed by identifying both express and implied comparisons. Under regulation 4(d) of the Business Protection from Misleading Marketing Regulations 2008, the court must then consider whether the comparison objectively concerns material, relevant, verifiable and representative features.

Price-only advertising may imply that other significant product characteristics are comparable. The assessment is made from the viewpoint of the reasonably well-informed, observant and circumspect average consumer of the advertised goods. For ordinary goods, the court may apply common sense and experience without consumer or expert evidence.

Gibraltar (UK) Limited owned trade marks for veterinary nutraceutical products supplied by Vet Plus Limited. Viovet Limited advertised cheaper alternatives to those products on its website. The claimants alleged that the advertisements constituted impermissible comparative advertising and therefore trade mark infringement.

The parties agreed a preliminary issue concerning the message conveyed by three categories of advertisement. The court had to determine whether the advertisements compared only price, or whether they also conveyed that Viovet’s products were comparable in nature, composition, specification, efficacy and quality.

1. Applicable legal framework. Article 9(3)(f) of the EU Trade Mark Regulation (EU) 2017/1001 identifies use in comparative advertising contrary to Directive 2006/114/EC as potentially infringing. Article 4 of the Directive was substantially implemented by the Business Protection from Misleading Marketing Regulations 2008. The material condition was regulation 4(d), requiring an objective comparison of one or more material, relevant, verifiable and representative features, including price.
2. The court had first to identify the features compared, expressly or by implication. It then had to consider whether the comparison was objective rather than misleading. The principle in Lidl SNC v Vierzon Distribution SA, that a price comparison may imply equivalence in other significant characteristics, was relevant to that analysis.
3. The assessment was from the perspective of the reasonably well-informed, reasonably observant and reasonably circumspect average consumer of the goods. For ordinary goods and services, the court could use its own common sense and experience without consumer or expert evidence, applying the approach in Lidl Belgium v Colruyt and Interflora v Marks & Spencer.
4. The average consumer who had selected a veterinary nutraceutical product would be concerned to protect the health and well-being of their animal. Given the likely veterinary recommendation, that consumer would be particularly likely to assume that a cheaper alternative was comparable in nature, composition, efficacy and quality.
5. The wording of the advertisements reinforced that implication. References to saving money and swapping products conveyed that the alternative would provide a comparable benefit at a lower price. The Annex C advertisement, which referred to ingredients found in Aktivait, conveyed the same message even more strongly.
6. The preliminary issue was therefore decided in favour of the claimants. The average consumer would regard all three categories of advertisement as stating that the alternative Viovet products were comparable to the relevant VetPlus products, including in efficacy and quality.