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3 cracks open bubbly after winning O2 court case

O2 mulling appeal

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3 has won its High Court battle with O2 over the use of bubbles when advertising its service.

Two years ago 3 ran an ad which claimed that its pay-as-you-go service was cheaper than rival O2. The ad contained "bubble imagery to highlight that 3's service was being compared to O2's.

But O2 - which is now owned by Spanish telco Telefonica - took legal action claiming that the use of bubbles breached its trademark. After 18 months of legal action and four hearings, the High Court ruled 3 could use O2's trademarks to identify the cellco "in order to make a fair and accurate comparison between 3's prices and O2's"

The ruling confirmed that 3 had complied with all the applicable comparative advertising rules. As a result, the court rejected O2's claim that the advertisement infringed its trademarks.

In a statement 3 said the decision was a "victory for commercial free speech".

It explained: "O2 went to court in an attempt to prevent 3 running the advert, initially claiming the price comparison was inaccurate. O2 failed to obtain an injunction, and then formally admitted that for the purposes of the action the price comparison was true and not misleading. They then focused all of their attention on the use of bubble imagery in the advert, but failed to persuade the court that their trade marks gave them a monopoly over bubbles."

A not so bubbly spokesperson for O2 told us that the cellco is "considering an appeal" before adding that the court "did uphold the validity of our bubbles trademark".

Separately, Hutchison-owned 3 has revealed that it has almost 3.6m users of its 3G service in the UK (a UK market share of 5 per cent) out of a total world-wide customer base of 11.9m. 3 UK has also reported positive EBITDA (earnings before interest etc) in December which means that revenues "now cover both operating costs and the costs of continuing to grow [its] customer and revenue bases". ®

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