3UK wins High Court battle against O2 – a victory for commercial free speech
March 26, 2006
Mobile media company 3 celebrated another success in its campaign
to bring greater value to mobile customers in the UK. The success
followed victory in a High Court case brought against 3 by its mobile
competitor O2.
In the case O2 sought to stop 3 from making certain price comparisons
against its pay-as-you-go service, whilst also aiming to prevent
3 from using the 'O2' trademark along with bubble imagery as a means
of identifying O2 in comparative advertising.
The advert, the subject of the complaint, was first broadcast in
August 2004 as part of 3's pricing campaign in the mobile pay-as-you-go
market. The ad highlighted the great value 3 offered in comparison
to O2 by telling consumers that "On O2 pay-as-you-go the first three
minute peak rate call each day could cost you 75p - or with ThreePay
that exact same call could cost 15p".
The legal battle waged against 3 has lasted over a year and a half,
and in what was the fourth hearing in the case, the High Court ruled
3 could use O2's trademarks to identify O2 in order to make a fair
and accurate comparison between 3's prices and O2's. The ruling
confirmed that 3 had complied with all the applicable comparative
advertising rules and therefore rejected O2's claim that the advertisement
infringed its trademarks.
The advert was part of a larger television campaign directed at
the existing mobile phone networks. Each of the operators were treated
equally and in each case 3 showed off its great value. O2 went to
court in an attempt to prevent 3 running the advert, initially claiming
the price comparison was inaccurate. O2 failed to obtain an injunction,
and then formally admitted that for the purposes of the action the
price comparison was true and not misleading. They then focused
all of their attention on the use of bubble imagery in the advert,
but failed to persuade the court that their trade marks gave them
a monopoly over bubbles.
This is the fourth hearing relating to this comparative advert
that O2 has lost against 3. The earlier hearings were:
1. November 2004 in front of Mr Justice Pumfrey, an interlocutory
hearing where O2 attempted to get an injunction against 3 from broadcasting
the comparative advert.
02 failed to get an injunction to stop broadcast of the advert
2. The second hearing took place in February 2005 in front of The
Vice-Chancellor. At this hearing O2 sought to have the case referred
to the European Court of Justice.
O2 failed to get the case referred to the European Court of Justice
3. The third hearing took place in December 2005 in front of Master
Bragge. This was a hearing where O2 sought just before trial to
introduce survey evidence.
O2 failed to persuade the court to introduce its survey evidence
Graeme Oxby, Marketing Director of 3 UK said: "O2 has tried to
stop 3 using effective comparative advertising, but fortunately
for the UK consumer they've completely failed in their aims. Our
advert was a legitimate way for us to highlight the great value
we offered in comparison to O2. More importantly it was a fair and
accurate comparison. We have brought much needed competition to
the UK mobile market. We believe customers have the right to see
our comparative advertising and the judge agreed."
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