Consumer Protection Regulations not directly enforceable by IP owners
The draft Consumer Protection from Unfair Trading Regulations, which are currently before Parliament, prohibit a wide range of 'sharp practices' and introduce a high level of consumer protection. However, IP owners will not be entitled to enforce the provisions relating to misleading conduct. They will have to rely on the Office of Fair Trading (OFT) and trading standards authorities to do so.
The regulations will implement the Unfair Commercial Practices Directive (2005/29/EC), which introduced a variety of provisions on misleading advertising and aggressive sales practices.
Although member states were required to implement the directive by December 12 2007, a number of countries have been late doing so. In the United Kingdom, the regulations are due to come into force on May 26 2008, following consultation with the business community (which had asked for more time to prepare for the new rules).
In the past, IP owners have experienced difficulty in enforcing their rights in relation to 'copycat' packaging. As the new regulations could provide them with extra ammunition to tackle the problem, they lobbied strongly for a private right of enforcement. As foreshadowed by the government, enforcement of the regulations has been restricted to the OFT and Trading Standards.
The draft regulations introduce a far-reaching general prohibition of unfair commercial practices and identify two particular categories: misleading and aggressive practices. When applying the provisions, commercial practices are to be assessed in light of the effect that they would have on the 'transactional decisions' of the average consumer.
Further, the draft regulations ban outright 31 specific commercial practices, which will be considered unfair in all circumstances. These practices include:
"promoting a product similar to a product made by a particular manufacturer in such a manner as deliberately to mislead the consumer into believing that the product is made by that same manufacturer when it is not."
Such practices would include 'copycat' packaging.
If adopted, the regulations will increase the level of consumer protection in the United Kingdom. However, because the regulations may be enforced only by the OFT and trading standards authorities, it is likely that they will not be as helpful for IP owners as they might have been.
The authorities have limited resources and may well choose to focus on other banned practices, such as bait advertising, fake 'free' offers and exhorting children to buy. It remains to be seen how effectively the regulations will be enforced, and how they will be interpreted by the courts.
Nicole Woods, Rouse & Co International, London
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