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

The following IP practice 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
  • What do BPR 2008 do?
  • Misleading advertising
  • Comparative advertising
  • The relationship between BPR 2008 and the Trade Marks Act 1994
  • Offences and enforcement
  • Practical points
  • Disadvantages of relying on BPR 2008
  • Advantages of relying on BPR 2008
  • Passing off
  • More...

Business Protection from Misleading Marketing Regulations 2008 and passing off

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 (BPR 2008), SI 2008/1276 has been a useful addition in the fight against unfair business practices.

BPR 2008 prohibit advertising that misleads traders. They also set out the extent to which comparative advertising, whether addressed to traders or consumers, is permitted.

BPR 2008 came into force alongside the Consumer Protection from Unfair Trading Regulations 2008 (CPUTR 2008), SI 2008/1277 and should be considered in tandem with CPUTR 2008 when business practices potentially impact on consumers. See Practice Note: Consumer Protection from Unfair Trading Regulations 2008.

BPR 2008 implemented the EU Misleading and Comparative Advertising Directive (CAD) in the UK and replaced the Control of Misleading Advertisements Regulations 1988, SI 1988/915 and Trade Descriptions Act 1968. The provisions of BPR 2008 form part of retained EU law and continue to apply in the UK following Brexit, but to the extent that the EU law in this area diverges from the position adopted in the UK or there is further deregulation

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