44.— (1) A commercial practice involving marketing or advertising is misleading if it would be likely to cause the average consumer—

(a) to confuse—

(i) a competitor’s product with the trader’s product, or

(ii) a competitor’s trade name, trade mark or some other distinguishing feature or mark with that of the trader,

and

(b) to make a transactional decision that the average consumer would not otherwise make.

(2) In determining whether a commercial practice is misleading under subsection (1), the commercial practice shall be considered in its factual context, taking account of all of its features and the circumstances.