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Friday, 25 February 2005

COMPARATIVE ADS: A CASE OF MIXED MESSAGES


Lawtel's subscription-only service brings news 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 and owned the copyright in the magazine's logo and layout. The Sun, one of the papers in the News Group's stable, ran an advertisement that reproduced the front cover of an edition of What's on TVtogether with the front cover of another magazine, TV Choice, plus the front cover from The Sun's own new magazine. IPC contended that reproduction of its logo and front covers infringed its copyright and that The Sun's use of its material was not fair dealing under the Copyright, Designs and Patents Act 1988 sections 30(1) and s.30(2) as its purpose was to reduce sales of IPC's magazine, which could have been achieved without reproducing IPC's copyright material. News Group argued that it had a fair dealing defence under sections 30(1) and s.30(2) as it was merely engaged in comparative advertising and that its use of IPC's material was for the purpose of criticism or review not of the work itself but of IPC's product.

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

* "Criticism", as alleged by News Group, did not fall within the meaning of section 30(1). All News Group needed, it it wanted to make the desired criticism of What's on TV, was to identify the product, which it could have achieved without infringing IPC's copyright.

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

* News Group's argument ignored the fact that the principal function of the copyright work in IPC's trade was to identify its product for its benefit. In copying the work to advance its own competing purposes at IPC's expense, News Group was advancing its own work, which did not amount to fair dealing within sections 30(1) or s.30(2).

The IPKat hasn't seen the judgment, but he has serious misgivings about the decision here. This appears to be a case of comparative advertising which is, both in the United Kingdom and in the European Union, reckoned to be lawful; the parameters of trade mark infringement have been pegged back so as to accommodate it (see for example the Misleading Advertising Directive). It seems wrong in principle that the same use of a logo should be permitted in so far as the trade mark rights in it are concerned, but prohibited in so far as the logo is also protected by copyright. We have a mixed message here, which will do nothing to clarify the issue as to what constitutes permissible commercial free speech. Merpel says she's not sure whether The Sun and its owners are champions of freedom of commercial speech or a bunch of unprincipled opportunists, though she has her suspicions ...

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

6 comments:

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