O2 bubbles dispute goes to the ECJ

Lewis Silkin and Wragge & Co are heading for the European Court of Justice (ECJ) following a landmark Court of Appeal decision this morning (Tuesday 5 December) in the long-running dispute between mobile phone operators O2 and 3.

Wragges client O2 brought the appeal against the March 2006 decision of Mr Justice Lewison, who ruled that Hutchison 3G’s use of bubble imagery did not infringe O2’s trademarks.

This morning Lord Justice Jacob ruled that the case must be referred to the ECJ to decide the extent to which European law allows comparative advertising.

Jacob LJ said: “The trial judge, Lewison J, opened his judgment saying ‘this is a case about bubbles’. And so it is. But it is also about a lot more. How aggressively does EU law permit comparative advertising to go?”

Jacob LJ said the Court of Appeal could have decided the case and granted leave to appeal to the House of Lords, but that a reference to the ECJ would be “inevitable”.

The case examined the 1997 Comparative Advertising Directive and its relation to UK trademark law.

In deciding that 3’s use of bubbles in a comparative advertisement did not constitute trademark use, Jacob LJ overturned his own judgment in the 2000 British Airways v Ryanair comparative advertising case. That claim was also fought by Wragges, with One Essex Court’s Geoffrey Hobbs QC as counsel.

In the present dispute, Hobbs is instructed by Lewis Silkin partner Giles Crown for 3. Wragges is instructing 11 South Square’s Richard Arnold QC for O2.