In a significant comparative advertising decision in June 2015, the Commercial Court held that Dunnes Stores, one of Ireland’s largest retailers, had infringed the Irish comparative advertising regulations by its use of a comparative advertising campaign with leading global discount supermarket chain Aldi in 2013.
In granting the injuction against Dunnes Stores, Mr Justice Cregan made particular reference to the “cavalier attitude” Dunnes had displayed towards Aldi’s complaints. The failure on the part of Dunnes to reply to basic correspondence was considered to be “beyond mere discourtesy”. This disregard for Aldi’s rights informed the Judge’s decision to grant the injunction, even though the campaign had ceased.
While the decision does not make comparative advertising campaigns unlawful, it highlights that a high level of care should be taken to ensure that any advertisements do not infringe comparative advertising regulations and / or trade mark rights.
Trade mark owners can also now be more confident in their ability to obtain an injunction on foot of trade mark infringement in respect of potential future infringements in circumstances where a disregard for the trademark owner’s rights is evident.
What’s on the Horizon for 2016?
It is envisaged that 2016 will bring clarification on the compatibility between GRS and EU directives. A final decision is awaited from the CJEU on standardised tobacco packaging. Elsewhere, in the Intellectual Property sphere, a referendum on the ratification of the International Agreement on a Unified Patent Court ("UPC") is anticipated which will pave the way for the establishment of a local division of the Court of First Instance of the UPC. Further, the EU Directive on trade secrets, which was preliminary agreed by the European Parliament and the Council, in December 2015, is also anticipated.