402	Business protection from misleading marketing
	of origin of competing products. Thus, if a producer uses a trade mark, trade
	name, etc., that is so similar to that of his competitor that it will cause confu-
	sion in the minds of potential purchasers, there will be a breach of this provi-
	sion as it takes advantage of the reputation of his competitor. Further, it may,
	for example, make an implicit statement about the quality of the product, sug-
	gesting that it is of a comparable quality to that produced by the competitor. Of
	course, if the product is in any way technical or needs to fit another item, it may
	be that the use of the same design and possibly the same part number as the ori-
	ginal is necessary, e.g., if a producer is making computer printer cartridges to fit
	particular printers. In this example, the producer will need to indicate the make
	and model of the printer that it will fit; however, while the cartridge must be
	identical in size to one produced by the original printer manufacturer, it does
	not necessarily require the use of the same part number– to use the same part
	number might be taking advantage of the printer manufacturer’s reputation. It
	will, as always, depend on the facts of the particular case. It is noticeable that
	this paragraph does not expressly require that any confusion has been caused
	but, in practice, unfair advantage implies that a purchaser has been misled. This
	can apply equally to business purchasers and consumers and it may be that the
	use of a logo or part number would not have misled a business purchaser but
	would mislead a consumer who is less familiar with the particular industry.
	Finally, regulation 4(i) prohibits an advertiser from presenting a product as
	being an imitation or replica of any product which carries a protected trade
	mark or trade name. This goes further than merely addressing the issue of coun-
	terfeit goods, where the advertiser seeks to pass off counterfeit goods as being
	the genuine article. This paragraph considers those situations where the adver-
	tiser openly states that the goods are imitations but, nonetheless, they look like
	the real thing. Arguably, the most common examples are to be found in imita-
	tion designer jewellery, clothing, handbags and football strip. The aim of such
	imitations is not to mislead the purchaser, who is usually fully aware that the
	goods are replicas, but, nonetheless, the advertiser is taking unfair advantage
	of the reputation of the genuine trade mark and any resultant supply and profit
	will be regarded as having arisen through unfair competition contrary to regu-
	lation 4(i).
	Q3 Do the controls over comparative advertising provide a balanced and fair
	approach to the topic?

5â Promotion of misleading or comparative advertising

Regulation 5 prohibits a code owner from using a code of conduct to promote misleading advertising contrary to regulation 3 or comparative advertising contrary to regulation 4. A ‘code owner’ is defined for this purpose as being ‘a trader or body responsible for the formulation and revision of a code of conduct; or [for] monitoring compliance with the code by those who have undertaken to

403	6â Recommended reading
	be bound by it’.39 Codes of conduct in any given industry are usually volun-
	tary and are promulgated by professional organisations seeking to promote
	good practice among their members. In practice, therefore, it seems unlikely
	that any code owner would deliberately promote unfair comparative advertis-
	ing, but regulation 5 adds legal controls to the self-regulation contained in a
	code of practice. A breach of regulation 5 is not a criminal offence but the code
	owner could be subject to civil enforcement through a local authority seeking
	an undertaking under regulation 16 or an injunction under regulation 17. The
	potential advantage of this approach to an enforcement authority is that taking
	action against a code owner and thereby changing a code of conduct impacts on
	all of the members of that professional body and negates the need to deal with
	each member individually. Of course, offending traders who do not subscribe
	to a code of conduct will still need to be dealt with on an individual basis.

6â Recommended reading

Department for Business, Enterprise and Regulatory Reform Explanatory Memorandum to the Consumer Protection from Unfair Trading Regulations 2008 and the Business Protection from Misleading Marketing Regulations 2008 (London, 2008)

Griffiths, M. ‘Unfair commercial practices: a new regime’ (2007) 12 Communications Law 194

Office of Fair Trading Business to Business Promotions and Comparative Advertisements: A Quick Guide to the Business Protection from Misleading Marketing Regulations 2008, OFT 1058 (London, 2009)

Party, D.L., Rowell, R. and Ervine, C. (eds.), Butterworths Trading and Consumer Law (London, 1990)

Ramsay, I. Consumer Law and Policy: Text and Materials on Regulating Consumer Markets (2nd edn, Hart Publishing, Oxford, 2007)

There has been relatively little written on this topic, hence the brevity of the reading list. Readers may benefit from reading the official guidance and also the comment by Griffiths.

39 BPMM Regulations 2008, reg. 2. This definition is identical to that used in the CPUT Regulations 2008, reg. 2 and is drawn from Directive 2006/114/EC.

Part 6

Banking and Finance Law

Introduction

Part 6 deals with banking and finance law. Chapter 1 identifies and explains the policies adopted by the United Kingdom government towards the banking sector. The chapter begins by providing a brief historical account of the development of banking regulation from the creation of the Court of Alderman in the seventeenth century to the Financial Services Bill (2011). The chapter identifies the contrasting policies adopted by the Labour government (1997–2010) and those proposed by the Coalition government.

Chapter 2 sets out to provide a detailed overview of the law relating to banks. The chapter begins by attempting to answer what in theory should be a very simple question – what is a bank? However, it will become clear that this is quite a difficult question to answer. Chapter 2 goes onto define a ‘customer’ and then progresses to highlight the very complicated relationship between a bank and its customers. Particular attention is paid to the duties a bank owes to its customers, including, for example, the duty of confidentiality. The chapter also outlines the different types of bank accounts offered to customers and deals with some of the legal issues relating to cheques, e-banking and the regulation of bank accounts.

Chapter 3 provides an overview of the United Kingdom’s financial regulation provisions. The chapter begins by briefly highlighting the influence of EU legislative provisions on the UK financial regulation system. This includes a discussion of the various Banking Directives, the Basel Accord and the Basel Committee on Banking Supervision. The chapter then concentrates on the current system of regulation imposed by the Financial Services Authority (FSA) via its Handbook and the provisions of the Financial Services and Markets Act 2000. The chapter finally turns its attention to financial crime and identifies the relevant statutory provisions relating to money laundering, insider dealing, market abuse, terrorist financing and fraud.