(BRUSSELS) - A European court rejected on Thursday a claim by mobile phone group O2 that Hutchison 3G had infringed its trademark in a British advertising campaign comparing the prices of the two rivals services.

The case centred around a 2004 ad campaign by Hutchison 3G, operating under its "3" brand, in which it compared the prices of its pay-as-you-go mobile phone services to those of O2, incorporating bubble imagery similar to trademarks owned by Spanish telecoms giant Telefonica's O2 company.

Although O2 didn't challenge the price comparisons used in the ads, it did bring an infringement case against "3" to the British courts over the use of the bubbles trade marks.

However the British High court dismissed the claim against Hutchison 3G, part of the Hong Kong conglomerate Hutchison Whampoa, and after an appeal by O2, Britain's appeal court put the matter to the European Court of Justice.

The European court judged that "a trademark proprietor is not entitled to prevent the use of a sign identical with, or similar to, a mark in a comparative advertisement if there is no likelihood of confusions on the part of the consumer" between the two products involved.

The British courts had decided that Hutchison's use of the bubble images "did not give rise to a likelihood of confusion" and therefore the conditions for a copyright infringement case were "not satisfied," the court said in its judgement

More generally, the European court ruled that four conditions must be satisfied for a proprietor to prevent the use of a trademark or logo similar to its own.

These are that; it must be used in the course of trade, without consent, in respect to similar or identical goods and in a way likely to cause confusion.

In this case, while three of those criteria were satisfied, the last was not, the court opined.

Judgment of the European Court of Justice in Case C-533/06 - 02 Holdings Limited & 02 (UK) (pdf)

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