Battle of the Bubbles in Europe — Legitimate fair use or not

British mobile phone network Hutchison 3G was cleared of trademark infringement and unfair comparative advertisement claims by rival operator ‘O2’in the UK High Court on March 23, 2006. The case was one of the first to consider how trade mark laws should interact with a more recent European directive on comparative advertising. The Hutchinson advertising campaign explicitly compared the price of the parties’ mobile phone services, making use of the bubble imagery which O2 trademarked and had used in high profile marketing campaigns over the previous five years. Hutchinson’s use of the bubbles "to identify O2 and compare the parties prices" was held to be "legitimate, fair and not misleading to consumers". The Hutchinson 3G advertisement therefore did not infringe O2’s rights under the Trade Marks Directive 97/55/EC or the British Trade Marks Act of 1994. "Taking the advertisements as a whole", the court found no confusion was created between the parties’ trademark and service. Though the O2 bubbles were held to have obtained inherent and acquired distinctiveness as trademarks, O2 failed to persuade the court this gave them a monopoly over the use of bubbles as a source identifier. Allegations that 3G misused the bubbles to attract consumers and thereby damaging O2 were dismissed.