Gibraltar v Viovet: Comparative advertising and trade mark infringement

“Last month, the High Court handed down a decision on a preliminary issue in the case between two “veterinary nutraceutical” manufacturers and suppliers in Gibraltar (UK) Ltd and another v Viovet Ltd [2024] EWHC 777 (Ch). Unusually, the High Court undertook an analysis of advertisements under the comparative advertising rules as set out in the Business Protection from Misleading Marketing Regulations 2008 (“the Regulations”). This is the first decision in proceedings between the parties which may result in trade mark infringement by breach of comparative advertising rules.”

Comparative advertising 

Comparative advertising takes place where an advertisement compares, expressly or impliedly, the advertiser’s own products against those of a competitor. It is lawful to engage in comparative advertising in the UK as long as certain conditions are met.

These conditions are laid out in the Regulations, which implemented the Comparative Advertising Directive. Under the Regulations, comparative advertising is permitted only when certain conditions are met, including that the advertisement: 

• is not misleading
• compares products meeting the same needs or intended for the same purpose 
• objectively compares one or more material, relevant, verifiable and representative features of those products, which may include price
• does not create confusion amongst consumers 
• does not discredit or denigrate the trade marks of a competitor
• does not take unfair advantage of the reputation of a trade mark

If the comparative advertising fails to meet these conditions (amongst others), it may also constitute trade mark infringement.

The case

The second Claimant, VetPlus, supplies veterinary nutraceuticals produced by the first Claimant to veterinary practices and wholesalers.

The Defendant, Viovet, retails its own-brand veterinary nutraceuticals as well as those of third party suppliers, including those of VetPlus, on its website.

The Defendant ran a series of advertising campaigns on its website that offered the Claimants’ products for sale. The campaigns all essentially promoted the purchase of the Defendant’s own products when customers were in the process of selecting to purchase the Claimant’s product. In particular, when a customer selected a VetPlus product to add to its basket, an option appeared to "Save £[x] per day" or "Swap and Save [£]" or "Try something new" (which, if clicked, would take the customer to one of the Defendant’s own-brand products). Then, if a customer actually selected "Add to Basket" of a VetPlus product, they were presented with a further pop-up which displayed not only the selected VetPlus product but also one of the Defendant’s own-brand products. This option displayed pricing details showing that the Defendant’s products were cheaper. These details were also accompanied by a “Swap and Save” option, again directing customers to the Defendant’s own-brand products.

The Claimants’ argued that the Defendant’s advertisements expressly compared the prices between the products, but they also impliedly compared the quality and/or efficacy of the products.

The Defendant asserted that the advertisements would only be understood as comparing the prices of both parties’ products. The Defendant argued that the average consumer would assume that the reason that the alternative (Viovet) product was cheaper was that it was different (and possibly of a lesser quality) in some way.

At a case management conference between the parties, it was ordered that the determination of what features were being compared in the Defendant’s advertisements should be heard as a preliminary issue. This was ordered to avoid engaging in a costly and time-consuming analysis of whether such comparisons were objective (as opposed to misleading), which would be redundant if the preliminary issue was not found. 

The decision

The Court stated that, in order to decide whether these advertisements were lawful, it should first consider what feature of the products were being compared. This was the preliminary issue before the judge in this case. Once it is determined what features are being compared, it would then be necessary to consider whether the relevant comparison is objective as opposed to misleading.

The Court stated that the average consumer of the Claimants’ products will be keen to improve the health and well-being of its pet or animal, and given the nature of this product, the average consumer would not be prepared to compromise on the quality and efficacy of this product lightly. The average consumer is also likely to have arrived at selecting the VetPlus product following a consultation with a vet. As such, when offered an alternative, it is likely that the average consumer will assume that the alternative product is comparable in nature, composition, quality and/or efficacy. This is especially true since “Save £[x] per day” and “Swap and Save” wording appeared, which impliedly conveys the message that what is being offered is going to be equally beneficial for a pet but at a cheaper price.

Therefore, the Court held that the average consumer would regard the Defendant’s advertisements as statements that the Defendant’s products offered in the alternative were comparable in nature and/or composition and/or specification to the relevant VetPlus Product, including the efficacy and quality of the products.

The Court will now have to determine at a second trial whether the Defendant’s products are of a lesser efficacy and/or quality than the Claimants’ products.

Key takeaways

This case provides some unusual judicial guidance in respect of comparative advertising rules. If engaging in comparative advertising, advertisers should be cautious not to convey any messages – expressly or impliedly – which may fall afoul of the Regulations. Advertisers should be weary of using “Swap and save” language which may equate various features of the advertised products, especially in health-related fields (human or animal) where consumers are unlikely to compromise on quality.