This case, decided on Tuesday, concerned two press advertisements run by Ryanair in 1999 comparing their prices with BA’s for a selection of European flights. The first advertisement was headed ‘EXPENSIVE BA …. DS!’ and the second ‘EXPENSIVE BA’. The ASA had earlier upheld a complaint by members of the public against what Mr Justice Jacob called the ‘Bastard’ advertisement.
BA complained that:
- The ‘Ba….ds’ headline was offensive.
- The individual price comparisons were unfair.
- Two of the destination comparisons were unfair.
The judge dismissed BA’s claims for infringement of its registered trademark and malicious falsehood.
In relation to trade mark infringement Ryanair had a defence under both section 10(6) and section 11(2)(b) of the Trade Marks Act 1994. Section 10(6) allows comparative advertising where the use of a competitive mark is in accordance with honest practices. You can be offensive about another’s trade mark without being dishonest. Section 11(2)(b) allows traders to describe goods or services by reference to other trade marks provided the use is in accordance with honest practices.
The judge further concluded that the advertisements did not constitute malicious falsehood and criticised BA for bringing the malicious falsehood claim, which in his view added nothing to the trade mark claim.
The judge commented that if published now, the advertisements would probably breach the Control of Misleading Advertisements (Amendment) Regulations 2000 which came into force in April 2000 (see our April bulletin). However the good news for comparative advertisers is that competitors cannot bring civil claims under these regulations. Enforcement is currently the responsibility of the OFT for non-broadcast advertising (including internet advertising) and of the ITC, Radio Authority or S4C for broadcast advertising.
The Ryanair case once again demonstrates the courts’ robust, even dismissive, attitude towards comparative advertising complaints. In what has become something of a ritual on these occasions, the judge stressed that the general public is hardened to the puff and hyperbole of advertisers. He further commented that it was ‘immature’ for two large companies to be fighting this sort of dispute in the courts.