Comparative Ads: A Illustration Of Mixed Messages

Lawtel's subscription-only service brings tidings of IPC Media Ltd v News Group Newspapers Ltd, a Chancery Division of Mr Justice Hart which he delivered extempore yesterday.

IPC published the weekly magazineWhat's on TV together with owned the copyright inward the magazine's logo together with layout. The Sun, 1 of the papers inward the News Group's stable, ran an promotion that reproduced the forepart embrace of an edition of What's on TVtogether alongside the forepart embrace of unopen to other magazine, TV Choice, addition the forepart embrace from The Sun's own novel magazine. IPC contended that reproduction of its logo together with forepart covers infringed its copyright together with that The Sun's use of its fabric was non fair dealing nether the Copyright, Designs together with Patents Act 1988 sections 30(1) together with s.30(2) every bit its utilization was to cut sales of IPC's magazine, which could choose been achieved without reproducing IPC's copyright material. News Group argued that it had a fair dealing defense strength nether sections 30(1) together with s.30(2) every bit it was precisely engaged inward comparative advertising together with that its utilization of IPC's fabric was for the utilization of criticism or review non of the operate itself but of IPC's product.

Mr Justice Hart gave summary judgment inward favour of IPC. He held that

* "Criticism", every bit alleged past times News Group, did non autumn inside the important of department 30(1). All News Group needed, it it wanted to brand the desired criticism of What's on TV, was to position the product, which it could choose achieved without infringing IPC's copyright.

The Sun: unprincipled opportunist or tireless fighter for liberty of commercial speech?

* News Group's declaration ignored the fact that the primary component of the copyright operate inward IPC's merchandise was to position its production for its benefit. In copying the operate to advance its ain competing purposes at IPC's expense, News Group was advancing its ain work, which did non amount to fair dealing inside sections 30(1) or s.30(2).

hasn't seen the judgment, but he has serious misgivings close the determination here. This appears to endure a illustration of comparative advertising which is, both inward the Britain together with inward the European Union, reckoned to endure lawful; the parameters of merchandise score infringement choose been pegged dorsum together with hence every bit to adapt it (see for illustration the Misleading Advertising Directive). It seems incorrect inward regulation that the same utilization of a logo should endure permitted inward together with hence far every bit the merchandise score rights inward it are concerned, but prohibited inward together with hence far every bit the logo is every bit good protected past times copyright. We choose a mixed message here, which volition orbit aught to clarify the resultant every bit to what constitutes permissible commercial complimentary speech. Merpel says she's non certain whether The Lord's Day and its owners are champions of liberty of commercial speech communication or a bunch of unprincipled opportunists, though she has her suspicions ...

"Hold the forepart page!" here, here and here