Advocate General Mengozzi has given his Opinion today in Case C‑533/06 O2 Holdings Limited & O2 (UK) Limited v Hutchison 3G UK Limited, a reference to the European Court of Justice from the Court of Appeal for England and Wales. In relation to a set of questions on the use of non-identical signs to those of the trade mark owner in comparative price advertising, the Advocate General recommends that the court rule as follows:

"(1) The use of a sign identical or similar to the registered trade mark of a competitor in an advertisement which compares the characteristics of goods or services marketed by that competitor under that trade mark with the characteristics of goods or services supplied by the advertiser is covered exhaustively by Article 3a of [the misleading advertising directive] and is not subject to the application of Article 5(1)(a) or (b) of ... Council Directive 89/104 ... to approximate the laws of the Member States relating to trade marks.

(2) Article 3a ... is not to be interpreted as permitting the use, in a comparative advertisement, of a sign identical or similar to the registered trade mark of a competitor only when that use is indispensable for the purpose of identifying the competitor or the goods or services concerned".