REMEMBER, REMEMBER THE 12 DECEMBER ...

The IPKat has been prowling among this week's European Commission Official Journals and what should he find in issue L 149 (11 June) but Directive 2005/29 of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council. Fortunately this mouthful is given a short, affectionate title: the Unfair Commercial Practices Directive.

The intellectual property community doesn't seem to have made much noise about this Directive, which is odd because it has the potential to produce a paradigm shift in the provision of a single market for fair dealing as between traders and consumers.

18 pages in length, the Directive leads with five pages of preamble, followed by 21 Articles. It is followed by two annexes:

* Annex I, which lists several pages of practices which are always considered unfair, and

* Annex II, a helpful checklist of Community law provisions that set out rules governing advertising and commercial communications.

The IPKat notices several explicit references to IP.

Could this be the Commission's new motto?

Preamble 9 states:

"This Directive is without prejudice to individual actions brought by those who have been harmed by an unfair commercial practice. It is also without prejudice to Community and national rules on contract law, on intellectual property rights ... and to Community competition rules and the national provisions implementing them".

Article 6 reads:

"1. A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise: [...]

(b) the main characteristics of the product, such as its availability,
benefits, risks, execution, composition, accessories, aftersale customer
assistance and complaint handling, method and date of manufacture or provision, delivery, fitness for purpose, usage, quantity, specification, geographical or commercial origin or the results to be expected
from its use, or the results and material features of tests or checks carried out on the product;

(c) [...] any statement or symbol in relation to direct or indirect
sponsorship or approval of the trader or the product; [...]

(f) the nature, attributes and rights of the trader or his agent, such as his identity and assets, his qualifications, status, approval, affiliation or connection and ownership of industrial, commercial or
intellectual property rights or his awards and distinctions; [...].

2. A commercial practice shall also be regarded as misleading if, in its factual context, taking account of all its features and circumstances, it causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise, and it involves:

(a) any marketing of a product, including comparative advertising, which creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor; [...].

These provisions, which by Article 11 appear to be enforceable by consumers and groups affected by them, must be implemented by 12 December 2007.

No more puzzled pussies, from 12 December 2007

The IPKat says "Watch this space: the Directive is bound to attract interest as more IP-alert traders realise how much it can affect them". Merpel says "It looks like good stuff to me. But will this wipe out both unfair competition law and passing off as we know it, providing a level of consistent pan-European non-statutory protection for the first time?"

Background to the Directive here