Business Protection from Misleading Marketing Regulations 2008 and passing off
Produced in partnership with Sarah Hadland of S.H. & Associates
Business Protection from Misleading Marketing Regulations 2008 and passing off

The following IP guidance note Produced in partnership with Sarah Hadland of S.H. & Associates provides comprehensive and up to date legal information covering:

  • Business Protection from Misleading Marketing Regulations 2008 and passing off
  • Legislation
  • What do the BPRs do?
  • Misleading advertising
  • Comparative advertising
  • The relationship between the BPRs and the Trade Marks Act 1994
  • Offences and enforcement
  • Practical points
  • Disadvantages of relying on the BPRs
  • Advantages of relying on the BPRs
  • more

Businesses seeking to prevent competitors gaining an unfair advantage through the use of misleading advertisements or copycat products have to rely on a combination of different rights. Historically, passing off has played a key role in preventing unfair business practices but a passing off claim has its limitations and the advent of the Business Protection from Misleading Marketing Regulations 2008, SI 2008/1276 (BPRs) has been a useful addition in the fight against unfair business practices.

The BPRs prohibit advertising that misleads traders. They also set out the extent to which comparative advertising, whether addressed to traders or consumers, is permitted. The BPRs came into force alongside the Consumer Protection from Unfair Trading Regulations 2008, 2008/1277 (CPUTs) and should be considered in tandem with the CPUTs when business practices potentially impact on consumers. See Practice Note: Consumer Protection from Unfair Trading Regulations 2008.

Legislation

The BPRs, SI 2008/1276, came into force in May 2008 implementing the EU Misleading and Comparative Advertising Directive (CAD) in the UK and replacing the Control of Misleading Advertisements Regulations 1988 and Trade Descriptions Act 1968.

What do the BPRs do?

  1. They prohibit misleading advertising to traders

  2. They set out the parameters within which comparative advertising is allowed (irrespective of whether it is aimed at consumers or traders)

  3. They prohibit bodies with