It would have been too much to expect this government to support Tesco in its battle with Levi’s before the European Court. The government could not readily invite an unelected judiciary to overturn legislation for which it had voted without being charged with hypocrisy, as it is precisely this sort of judicial review that it rails against in the domestic arena.
However, the Court’s decision to apply the terms of the Trademark Directive (which is all the decision actually amounts to) causes a serious dilemma for the government – namely how to carry forward the “Rip Off Britain” campaign which has caused so much heartburn in the boardrooms of British industry. This campaign, initiated by Stephen Byers before he moved on to greater things, has yet to deliver anything concrete. Had Tesco won, the government could have congratulated itself and quietly buried it; it now has no option but to pick it up and run with it, whatever industry thinks about it.
The prime candidate for picking up the campaign is the OFT’s new Markets and Policy Initiative Division, which has been set up to investigate markets which are not working well for consumers. But where will they run with it? Interestingly, the Division is currently looking for a branch director and the job description says that the need to manage “conflicting agendas” is particularly important. Herein lies the dilemma. It remains very unclear where “Rip Off Britain” actually leads. If pursued correctly, the prime candidate of rip offs would be the government itself. Whilst all the conflicting agendas are managed everyone providing goods and services to consumers in Britain can expect more of the burdensome regulation that puts the country on a par with Italy as the most difficult place to do business in Europe.