L'Oréal v Bellure has returned to the Court of Appeal, following the ECJ's ruling on 18 June 2009. The impact of this decision (in a case concerning the use of comparison lists) is far reaching and is likely to play into the hands of brand owners.
On 21 May, Lord Justice Jacob reluctantly followed the line drawn by the ECJ between unlawful and lawful use of another's trade mark. However, he commented that "free from the opinion of the ECJ" he had a "strong predilection" for a different conclusion, one based on the principles of free speech and freedom to trade.Brand owners will welcome the
ECJ's recognition of further functions of a trade mark beyond its role as a badge of origin (investment, advertising, communication and quality). Unfortunately, coupled with the lack of clear guidance on concepts such as "unfair advantage" and "free riding", life is likely to become more difficult for traders. The debate will no doubt continue and we wait to see if it will lead to legislative change or perhaps a further ECJ judgment to address the balance.
