At the end of last month, the long-awaited judgment in the Interflora v Marks and Spencer case on trade mark infringement as it relates to keyword advertising was delivered by Mr Justice Arnold. The case dates back to 2008, when Interflora brought a case against Marks and Spencer for its purchase and use of the search terms “interflora”, “interflora.co.uk” and “interflora delivery” in order to drive traffic to its own site. The case required that a number of complex issues of European trade mark law be referred to the CJEU. The CJEU found that keyword advertising is not inherently or inevitably objectionable from a trade mark perspective. In fact, it argued, as a general rule, keyword advertising can promote healthy competition. However, an infringement may occur where a “reasonably well-informed and reasonably observant internet user” believes that the advertiser is economically connected with, or its goods or services originate from, the trade mark owner. For a full analysis of the recent High Court decision, please see Reed Smith's recent Client Alert on the subject, written by Media and Technology Partners, Nick Swimer and Gregor Pryor, and Commercial Disputes Partner, Carolyn Pepper, available here.
Over the last year, a number of cases have been reported where children have unwittingly racked up huge bills while playing web and app-based games that are free to download. The bills came from expensive "in-app purchases" of content such as upgraded membership and virtual currency, which is how many of the top-selling apps make money. In a recent example, a 13-year old boy from Somerset spent £3,700 on chests of virtual gold coins and other game-enhancing content.
Last month, the Office of Fair Trading (OFT) launched an investigation into the way web- and app-based games manufacturers market their products to children. The investigation will discuss whether such games may be in breach of The Consumer Protection from Unfair Trading Regulations 2008, which prohibit "including in an advertisement a direct exhortation to children to buy advertised products or persuade their parents or other adults to buy advertised products for them". The latter practice is more commonly known as "pester power". The OFT is also considering whether the full cost of these games is made clear at the outset. As part of the investigation, the regulator has written to games developers and hosting services, and has asked consumers to contact it with information about potentially misleading, commercially aggressive or otherwise unfair marketing. Cavendish Elithorn, the OFT senior director for goods and consumer, said: "We are concerned that children and their parents could be subject to unfair pressure to purchase when they are playing games they thought were free, but which could actually run up substantial costs".
The OFT’s next steps are expected to be published by October 2013.
The ASA has upheld a complaint concerning a Christmas card which was offered for sale through the Amazon market place by the seller named smellyourmum.com. The front of the card contained wording incorporating a strong expletive which, although partly obscured using an asterisk, the ASA considered was likely to cause serious and widespread offence in breach of Rule 4.1 of the CAP Code.
While it is not particularly alarming that the ASA found that the appearance of the expletive would likely cause offence, it is interesting that the ASA considered that its jurisdiction extends to claims concerning the display of product items which were simply listed in a market place storefront, particularly where the wording in question was relevant to the name of the product and (as pointed out to the ASA by Amazon) where such product titles and images were not otherwise prohibited by applicable decency laws.
The ruling does not provide much detail concerning the nature of the product listing and whether it was paid-for or preferential in any way, however the introduction to the CAP Code specifies that it does not apply to: (i) point-of-sale displays (except those covered by sales promotion rules or the rolling paper and filter rules); or (ii) website content not specifically covered, including natural (rather than paid-for) listings on a search engine. The ASA did not consider this point in its ruling, although perhaps it might have argued that the listing is paid-for by way of commission for product sales.
Nevertheless, the ruling should be considered with care by online retailers who display products for sale through storefronts with potentially offensive wording or images. For further guidance on this issue and on other Code issues, please contact us.
With news in this week that a certain Swedish retailer has joined the list of companies whose beef products have been found to contain elements of horsemeat, it is interesting to take a look at how the advertising industry has reacted to this debacle. Many brands are using the now Europe-wide "horsemeat scandal" to their advantage. Last week, Mini capitalised on the public uproar to promote their new roadster with the tagline "Beef. With a lot of horses in it." This play on words highlights the Mini Roadster's 211 horsepower, but could not have been more perfectly timed! The print ad was created for Mini by Iris Worldwide.
Similarly, the troubled retailer Game, published a print ad in The Sun newspaper on 19th February stating "We make mince meat out of anything" in white letters against a dark background. A spokeswoman for Game quipped: "We do encourage 100% horsepower when gaming." The ad was designed by Game Group’s in-house team.
In a different approach, the National Farmers’ Union (NFU) ran a ‘Buy British’ advertising campaign in national newspapers last weekend in direct response to the scandal, accompanied by the hashtag #BuyBritish. The NFU is championing British produce on social media, encouraging consumers to show their support and buy high standard food produced on British farms. Other industry bodies are uniting for the same cause, with Eblex (the English Beef and Lamb Executive), Bpex (the British Pork Executive) and Red Tractor Assurance also launching marketing campaigns encouraging British consumers to buy quality assured, traceable British beef, pork and lamb products, in order to re-establish consumer confidence in the industry.
During the 2012 Christmas season, ASDA and Morrisons ran ads depicting mothers running errands, bustling around kitchens, preparing food, wrapping presents and attending Christmas plays. Complaints were made to the ASA on the basis that they were offensive and sexist because they reinforced outdated stereotypes of men and women in the home.
Morrisons responded to these claims by stating that its ad was a socially aware and thought provoking glimpse of the reality that faces many working mothers who bear the brunt of responsibility for Christmas preparations, and a "subtle and sensitive critique" which did not encourage discriminatory behaviour or treatment. ASDA acknowledges that its ad did not reflect universal experience, but pointed to its extensive customer research showing almost 2,000 mothers agreed with this depiction. ASDA’s ad also received complaints on the grounds that it could cause offence to single fathers, men who are in a primary domestic role and children who have lost their mothers, which appeared to be evidenced by the VO "behind every Christmas, there’s mum, and behind every mum, there’s ASDA".
The ASA considered the ads under Rules 4.1 (ads must contain nothing that could cause physical, mental, moral or social harm to persons under the age of 18), 4.2 (ads must not cause serious and widespread offence against generally accepted, moral and cultural standards), and 4.8 (ads must not condone or encourage harmful discriminatory behaviour or treatment), but the complaints were not upheld.
Perhaps most interesting about these adjudications is the ASA’s finding that the ASDA ad, which received over 600 complaints from members of the public, was not deemed to have caused "serious and widespread offence". The ASA accepted that such depictions were not indicative of everybody’s Christmas experience but they did represent the experiences of certain of the supermarkets’ customer demographics.
SodaStream is continuing its battle to get its "sustainability" TV ads on air. In November 2012, SodaStream was forced by Clearcast, the body that advises on and pre-clears UK TV ads, to pull this TV ad, which formed part of its £11m 'SodaStream Effect' global campaign, just hours before it was due to air. The ad contains a message about waste and sustainability and features soft drink bottles bursting and disappearing as people use their SodaStream device. The closing line states: "With SodaStream you can save 1,000 bottles per year". Clearcast argued that "the visual treatment denigrated other soft drinks which put it in breach of the BCAP Code (Rule 3.42)" adding that "environmental issues were not relevant to that decision". Rule 3.42 states that TV ads must not discredit or denigrate a product, marketer, trade mark, trade name or other distinguishing mark. SodaStream labelled the decision as "absurd". There is some sympathy for this argument in that it was a class of products, rather than any specific competitor’s brand that was being targeted. The UK is the only country to have banned this particular advert and it has been shown in the Canada, Sweden, Australia and New Zealand. . In the UK, unlike TV ads, print ads do not need to be pre-cleared. We watch this space for Sodastream’s next steps.
In the UK, genuine comparative advertising is permitted by legislation, provided that the comparison is "like-for-like" and there is no disparaging of a competitor’s products. For TV advertising, under BCAP Rule 3.3.5, comparisons must objectively compare one or more material, relevant, verifiable and representative feature of those products and should not stray into subjectivity. This was not a comparative ad per se since no genuine comparison was made, but the ad was found to be in breach of In a response, and as a protest, to the initial decision, SodaStream launched new TV advert featuring only a black screen, a minimal soundtrack of bottles being opened and the words in white text: "If you love the bubbles set them free". The last frame then directs viewers to YouTube where the banned ad can still be seen. This ad has been dubbed "The Bubble Blackout". SodaStream appealed Clearcast's decision in early December, but it was upheld and therefore the ad remains unapproved for broadcast in the UK its current form.
Whilst its dispute with Clearcast was underway, Sodastream took out a full-page ad in several national UK newspapers with the headline "Censored" and including the claim that "With SodaStream you can save 1,000 bottles a year." The print ad also notes that the TV ad was banned by Clearcast and that "for some this truth is uncomfortable"
Meanwhile, across the pond, as my US colleagues, Keri Bruce and Marilyn Colaninno report, the dispute is bubbling up again. SodaStream has purchased airtime during the Superbowl on February 3, 2013 (arguably the most-watched sporting event on the planet) when, according to SodaStream, "people are most likely to notice the growing piles of bottles and cans strewn about the room and filling up their trash". Its initial ad was submitted for approval to air on CBS, but was rejected by the network. The rejected ad depicted Coke and Pepsi delivery truck drivers attempting to deliver their soda bottles before they explode. CBS seems to have taken issue with the fact that the spot targeted Coke and Pepsi directly. While we aren't privy to the communications between CBS and SodaStream, it is possible the network may have felt that the spot was unfairly trading on the goodwill or reputation of Coke and Pepsi, when the benefits of making soda at home impact many carbonated beverage companies, not just Coke and Pepsi. Regardless of the reasoning, in the US, the major broadcast networks have standards and best practice departments which review all advertising submitted for broadcast in an effort to ensure that it is truthful, lawful and tasteful. The major networks have guidelines that touch on issues relating to comparative advertisements and denigration. While commercials making comparative claims are generally acceptable, false or misleading disparagement of competitive products or services is unacceptable. Specifically, per CBS guidelines, comparative advertising is acceptable if the claims, comparative and otherwise, are truthful, fair and adequately substantiated. Click here to view the banned spot on a SodaStream ‘protest site’ and see whether you agree with CBS. Another SodaStream ad will be aired in place of the rejected ad. SodaStream will be disappointed by this, but should remember that sometimes the publicity generated from having a rejected Super Bowl TV ad can be just as effective as the buzz surrounding ads which do end up being screened during the game.
We all put pressure on ourselves to get in shape in the New Year and whilst we often need a little push to do so, gyms should be warned about trying too hard to sign up new members. The Vauxhall branch of Gym Limited sent an SMS message to customers in April 2012 stating that 30 April 2012 was their ‘last chance’ to re-join the gym for £19.99 per month without being subject to the £20 joining fee. It then sent an email on 29 August stating that members had until midnight 31 August 2012 to re-join the gym for £19.99 per month without being subject to the £20 joining fee. Finally, it sent a further email on 26 September 2012 stating that customers had until midnight 30 September 2012 to re-join for £19.99 per month without being subject to the £20 joining fee and claim a free osteopathic assessment. The gym considered these to be separate and distinct offers which were truly limited in time. The ASA examined these offers in line with CAP Code rule 3.1 (misleading advertising), rule 3.31 (availability) and rule 8.2 (sales promotions) and found that the SMS offer was unlikely to mislead as there was a sufficient length of time between the SMS offer and the first email offer. However, it found that receiving the second email offer to re-join the gym without the joining fee less than one month after the first email offer which purported to expire on midnight 31 August 2012 would be contrary to consumer expectation. The ASA concluded that the first email offer implied an undue sense of urgency that it was the last chance to re-join the gym without the joining fee and that this was misleading. The lesson here for advertisers is to avoid placing undue pressure on consumers to make a purchase by implying that the offer is limited if such an offer becomes available again within a short space of time (here, less than a month later).
After many of us would admit to consuming one too many mince pies over the Christmas break, the inevitable flurry of diet and weight-loss products has started to invade the advertising space and remind us that summer is not too far away. Each year (and in particular the first few months of each year) the ASA is asked to consider numerous claims surrounding advertising which promotes weight-loss products and techniques in a misleading or irresponsible manner.In anticipation of such claims, yesterday the Committee of Advertising Practice (CAP) published a short, helpful guide of what it calls "do’s and don’t’s" for advertisers. It is certainly worth reading the guide in full but here are a few takeaway points:
- Don’t claim people can lose a precise amount of weight in a set period of time, or that weight can be lost from specific parts of the body.
- Do hold evidence for your claims and explain how the diet or technology works.
- Remember that slimming claims relating to food are also considered health claims.
- Be careful when using testimonials to not promote irresponsible and unhealthy activity which may be seen as incompatible with good medical and nutritional practice.
The above is a snapshot of good practice guidelines to follow when making diet/weight-loss claims. Remember that advertising health products and making specific health-related claims are heavily regulated activities and we would always advise advertisers to seek legal advice at the earliest opportunity.
At the start of this year, the second-largest French ISP, Free, took the surprising decision to release an update for its customers which allowed them to block third party ads if they so desired. Even more surprising was the fact that a total blocking of such ads was the default position created by the update, so that it was up to the customer in question to “opt-in” to receive any ads. As reported in Wired, such action was vehemently opposed by internet advertisers and indeed the French Minister for the Digital Economy, Fleur Pellerin. The Minister is reported as having said that such action was “inconsistent with a free and open internet, to which I am very attached”. Yesterday, the ISP bowed to pressure from the Minister and key industry players, by restoring access to internet ads, including those served by Google.
Many see Free’s actions as an backlash against Google. The company behind the internet’s most-used search engine, has long been criticised by other industry players because of the heavy demands on bandwidth of its YouTube service, which are onerous for ISPs, who see little in return. Google’s AdServe technology allows targeted advertising of consumers by online businesses, and it has been estimated that blocking of such ads by Free could have cost Google up to 1 million Euros a day in lost revenues.
This is the latest in a serious of setbacks for the search engine. In October 2012, Google threatened to exclude French media sites from search results in light of France considering proposals to make search engines pay for content. At the end of last year, in France as in the UK, Google faced much negative press in the wake of the publication of details of its tax efficiency schemes. Google may have won a battle this week in its ability to once again freely provide advertising to French consumers, but it still has a long war to fight on French soil in order to rebuild what is arguably a severely damaged public image.
Two toothpaste manufacturers have recently felt the bite of the ASA. Purity Laboratories Ltd claimed in a magazine advertisement that its products produced "whiter teeth in 1 minute" and attempted to substantiate this claim on its website by stating that " a study conducted at Bristol University Dental School proved that Beverly Hills Formula toothpaste can remove over 90% of staining in just 1 minute." When the ASA put Purity Laboratories Ltd to proof on this, it claimed that an inconsistency in spelling at the laboratory meant that not all product names stated in the test results accurately matched the names of its products and that it was awaiting further data. The ASA therefore held that this was misleading advertising under rule 3.1 of the CAP Code and the ads must not appear again in their current form.
Similarly Church & Dwight UK Ltd claimed that its toothpaste could produce "3 shades whiter clinically proven" and relied on a study which they had conducted by a leading dental research institute. When the ASA referred the study to an independent expert, it found that it was not "sufficiently robust" and even had a significant proportion of subjects who experienced darker teeth or no change at all. As a result of this the ASA found the claim to be misleading (breaching CAP Code rule 3.1) and incapable of substantiation (breaching CAP Code rule 3.9). As a result the ads cannot appear again in their current form.
Conversely Procter & Gamble were vindicated by the ASA when its ad featuring TV personality, Holly Willoughby, was investigated following claims that P&G had enhanced the whiteness of Miss Willoughby’s teeth in post-production. The ad was investigated for suspected breaches of CAP Code rule 3.1 (misleading), rule 3.9 (substantiation )and rule 3.12 (exaggeration) but was cleared by the ASA when Clearcast confirmed that P&G had not enhanced the film nor whitened Miss Willoughby’s teeth. P&G even produced a letter from Miss Willoughby stating that she had been using the toothpaste for a period prior to filming and had noticed a significant difference. On this basis the ad was cleared of any breach. There are two lessons to learn from these cases: i) always ensure that your advertised claims are backed up with solid independent evidence and ii) yes, Holly Willoughby’s teeth really are that white!
With Christmas fast approaching and the party season now in full swing, it is no surprise to see that alcohol is featuring prominently in advertising. Advertisers need to ensure that they comply with the provisions of the Codes (Section 18 of the CAP Code for non-broadcast and Section 19 of the BCAP Code for broadcast ads). It should also be noted that the rules apply to ads for alcoholic drinks but also those for other products and services which feature or refer to alcoholic drinks.
Many advertisers fall foul of the rules and have been accused of linking alcohol to sexual success or confidence or social acceptance. Alcohol Concern earlier this year raised a complaint about a TV ad for Estrella beer, for ostensibly linking alcohol, seduction and sexual success. However, on this occasion the ASA disagreed, and did not uphold the complaints in its adjudication.
Alcohol Concern considered the ad, which tells the story of the central male character’s island summer holiday, a breach of the BCAP Code for its apparent promotion of alcohol in the quest for friends and bedfellows. The main character unites with a couple of equally sun-kissed chums and spends his summer jumping off boats, beach-partying, flirting and enjoying the occasional Estrella beer on the dreamy Balearic island of Formentera. The complaint from Alcohol Concern was that the tone of the advert implied that alcohol contributed to the male character’s sexual success, social popularity and the overall success of the holiday. The soundtrack, "Summercat" by Billie the Vision and The Dancers, who feature in the ad, frequently includes the line "Tonight, I wanna be with you".
Clearcast’s view was that that alcohol was featured in a "realistic, incidental and minimal way" and that the interactions between the main male character and his female counterparts were ‘romantic’ rather than overtly suggestive or sexual. The ASA's adjudication followed Clearcast’s reasoning that the inclusion of alcohol was merely complementary to the spontaneous fun that the characters were seen to be enjoying, and reiterated that the Code did not prevent alcohol from being linked with ‘mild flirtation or romance’. It is rare for the ASA to disagree with Clearcast. All TV ads must be cleared by Clearcast, and it is worth noting that radio ads for, or featuring, alcohol must be cleared by the Radio Advertising Clearance Centre (RACC). Alcohol advertisers must also comply with the provisions of industry body The Portman Group’s Code of Practice for socially responsible marketing of alcohol products, available here.
The Advertising Standard Authority's remit will shortly cover Online Behavioural Advertising (OBA). The Committee of Advertising Practice (CAP) has extended the CAP Code to cover this increasingly developed form of targeted advertising with a new series of Rules. OBA involves the collaboration of advertising networks and third parties to deliver customised advertising based upon deep analysis of a user’s web browsing activity. From 4 February 2013, the ASA will require advertisers and other ‘third parties’ to provide notice to web users, in or around online display advertisements that OBA is taking place. This notice must then link to a mechanism whereby users can opt out of receiving OBA from that third party. The third parties themselves must provide a notice on their website that they use data for OBA and the understanding is that most third parties will then link to an industry-wide website whereby users can choose the type of third parties which can target them with advertisements. Not only this but third parties will be required to gain explicit consent from users before using forms of OBA and they will be prohibited from targeting children aged 12 and under. CAP’s rules on OBA do not apply to contextual advertising, web analytics, ad reporting or the use of OBA in rich media, in-stream videos online or on mobile devices but once these regulations begin operating, we may see further extension.
CAP and the ASA have stated that they hope to resolve any breaches of the Code quickly between the parties but failing this the ASA will carry out a formal investigation and publish an adjudication where necessary and so again as soon as these regulations begin to be enforced we may have a better idea of their application and consequence in practice. CAP has published a Help Note on this new development, available here.
A TV ad for Richmond ham which features a naked man wearing only a cap and eating a ham sandwich, was banned by the ASA at the end of last month, but not for the reasons you might think. The man sang a song declaring his love for Richmond ham which proclaimed that Richmond ham is "Britain's only ham made with 100% natural ingredients." The ad was cleared for broadcast with an ex-kids restriction, which meant it should not be shown in or around programmes made for children. The advert received 371 complaints, five issues were investigated by the ASA and one was upheld. the ASA investigated whether: (i) the nudity in the ad was offensive; (ii) the ad was inappropriate for broadcast at times when children were likely to be watching; (iii) the claim "Britain's only ham made with 100% natural ingredients" was misleading and could be substantiated; (iv) it was misleading to describe the product as "Britain's only ham...", because the company was Irish and the product was made in Ireland; and (v) the claims "made with 100% natural ingredients" and "as nature intended" were misleading and could be substantiated.
Surprisingly, it was issue number (iv) that turned out to be the reason for the ASA clamping down on Richmond ham. In relation to the nudity, which drew the most public complaints, the ASA stated that it was "not sexual in tone and we concluded that it was unlikely to cause serious or widespread offence". Regarding the claim that the ham was British, the ASA upheld the complaint, stating that the ham was likely to be interpreted by consumers watching the ad as a product of British origin, when this was not the case. Therefore, the claim was held to be misleading and the advert was deemed to breach BCAP Code rule 3.1 (Misleading advertising).
It’s a UK first and may be the future of print advertising. Open a limited edition copy of Marie Claire’s October issue at page 35 and you can enjoy passion and betrayal against a Sicilian backdrop, directed by Mario Testino, in black and white, complete with soundtrack – and all in just forty five seconds. Marie Claire is blazing the trail for video advertising in print with advert for Dolce and Gabbana’s Pour Femme and Pour Homme fragrances, produced by Procter and Gamble. Marie Claire’s publishing director Justine Southall, speaking in The Guardian, likened the insertion of the advert in the magazine to putting a ‘golden ticket in a Wonka Bar’ and considers that the intrigue around this new advent for print advertising can only be a positive move against waning interest in traditional print ads in a digital age. The video nicely continues the theme of D&G’s Italian Family campaign, which features Monica Belucci among others in short, stylish films celebrating la dolce vita.
The company responsible for the technology behind the ‘invisible’ paper-thin screen is Americhip. Its ‘video-in-print’ technology was launched in 2009 and has since been used to advertise Bacardi in Russia and by CBS in the US. The screen is made with a product similar to TFT LCD, the technology used to make laptop computer and mobile phone screens.
This hybrid form of advertising is likely to take off in virtually every field, be it to heighten aesthetics or communicate information more effectively. Crucially, the development could broaden the choices for advertisers from a legal perspective as well, since video in print ads would not constitute a broadcast under the UK advertising codes. Therefore, if Clearcast were to refuse to clear a TV ad for one reason or another, shifting the format to print could be an option for advertisers, just as they currently have the option of running such ads online.
The major obstacle for this form of advertising is, of course, cost. In this case, the cost was swallowed up by the advertiser, with no increase to the cover price of the magazine. The assumption is that the cost of the technology will reduce over time, meaning that it may be an increasingly viable option in the future. However, this particular medium presents a new challenge for print, since as the cost comes down over time, there could be a risk of overuse and the compromise of one of the few media where control of exposure still reigns. The key may be ‘less is more’ to enable brands to continue to distinguish themselves. D&G are getting the best of their opportune timing, since the ‘golden ticket’ factor and the exclusivity of the technology is still a principal selling point. Watch this space…