Ads & Brands Law Digest: September 2019

Advertising & Marketing

Competition & Markets Authority (CMA) launches programme of work against false & misleading online reviews

During web sweeps performed over a twelve month period the CMA has found what it describes as “troubling evidence” of a market in fake reviews, i.e. people offering via eBay and Facebook to write false or misleading reviews of products/services being sold online, in return for cash.  In response, the CMA has launched a “programme of work” to tackle such reviews, its first step being to ask eBay and Facebook to remove the sites/pages on which they were being offered.  Both companies have indicated that they will cooperate with the CMA in this respect, while the CMA has said that this is just the first phase in a wider programme to protect consumers from fake reviews.  (Previous CMA action has included enforcement against an online marketing company that posted fake reviews.)

Read more here and here

Advertising Standards Authority (ASA)  commissions public opinion research on identifiability of Influencer Advertising

The ASA has in the past few years been increasingly active in enforcing against social media influencers on Twitter, Instagram, etc, the CAP Code requirement that their promotional posts must be “obviously identifiable” as marketing communications.  It has now published this research report entitled “The labelling of influencer advertising”, commissioned to confirm what is in practice most effective in flagging up advertising from the social media user’s point of view. 

The conclusions of the research are that many social media users do not regard posts as clearly being ads even when they include “product shots, brand names, logos, discounts and calls to action (a ‘Shop Now’ button)”.  This has reinforced the ASA’s belief in the correctness of its current approach which is to require “a suitably prominent reference to #ad (or similar)… as a minimum”.  But it has also noted that recognition is not helped by the variety of labels currently used, and the variations in their location and prominence.  It thus seems possible that the ASA might in future require greater consistency of approach, perhaps through more prescriptive provisions in the CAP Code.

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ASA issues first batch of adjudications after introduction of new rules against gender stereotyping

The new CAP and BCAP rules, in force from 14^th June 2019, state that ads “must not include gender stereotypes that are likely to cause harm, or serious or widespread offence.”  The first few ASA rulings based on the new rules have now been published, with two upheld decisions finding a breach of the new rule, and two not upheld.  In those that were upheld the ads were found by the ASA a) “to juxtapose men in extraordinary environments and carrying out adventurous activities with women who appeared passive or engaged in a stereotypical care-giving role”, and b) “to rely upon the stereotype that men were unable to care for children as well as women”, with the use of humour in the latter case not mitigating the harm.  The ads that were not found to be in breach were held by the ASA a) to be depicting certain stereotypical activities, but focused more on other characteristics (drive and talent) which were not gender-specific, and b) to be tackling characteristics (being commitment-phobic or keen to settle down) that were not exclusively associated with either men or women.   Based upon the media reaction to the four ASA rulings so far, it seems likely to remain a controversial line for them to draw for the forseeable future.

Read more here, here, here and here

CMA  hails success in its actions against abuses in the hotel booking sector and online secondary ticketing market

The Competition and Markets Authority has heralded a “major overhaul of the hotel booking sector” as a result of its enforcement action and more recent follow-up to ensure that consumer protection laws are being observed.  In particular, the CMA is pleased that all of the big online hotel booking sites have signed up to its sector-wide principles, including commitments always to display the full cost of a room up front, and not to give a false impression of a room’s popularity.  Meanwhile, in another of the CMA’s long-running campaigns – this time against consumer law abuses in the secondary ticketing market – it has announced that it is satisfied that Viagogo is finally in compliance with its obligations, but will be continuing to keep the company under close scrutiny.

Read more here and here.

Data Privacy

EU Court of Justice (EUCJ) rules that a webpage featuring a Facebook 'like' button can make the operator a data controller jointly with Facebook regarding collection of personal data of visitors to the page

The EUCJ has ruled that when a website operator embeds a Facebook “like” button on its page, it is likely to be a joint controller with Facebook of the personal data of visitors collected and transmitted to Facebook as a result of people visiting the site.  (The court concluded that the data was collected and transmitted whether or not the visitor actually clicked on the button.)  The website operator must thus (amongst other obligations under GDPR) provide information to website visitors at the time of collection of data as to the purpose of processing, and seek consent for collection and transmission of data to Facebook.  On the other hand, the website operator would not be a joint controller regarding anything that Facebook subsequently does with the data, as the website owner has no control over that.

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Trade Marks, Passing Off & Copyright

EUCJ rules on requirement for 'targeting' to establish place of infringement jurisdiction in EU Trade Mark cases

In a case referred to the EU Court of Justice by the Court of Appeal of England & Wales, the EUCJ has confirmed that EU trade mark proceedings can be brought against a counterfeiter in a Member State to which online advertising and offers for sale of the counterfeit goods were directed (i.e. targeted), in this case potential customers in the UK.  Under the EU Trade Mark Regulation proceedings must be brought either in the defendant’s domicile (in this case Spain) or where “the act of infringement has been committed or threatened”.  The targeting of UK customers would potentially amount to such an infringement in the UK, and so proceedings could be brought in the UK.

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IP & Enterprise Court finds for Claridge's Hotel in trade mark and passing off proceedings against Claridge Candles

The judge unsurprisingly held that the CLARIDGE trade mark owned and used by Claridge’s Hotel had a very substantial reputation in the UK in relation to hotel services, and that by selling goods using the same mark Claridge Candles were taking unfair advantage of that reputation under Trade Mark Act (TMA) 1994, s. 10(3), potentially enabling them to charge higher prices or sell more products than they otherwise would have done.  For similar reasons, the judge also upheld the claim of passing off against the defendants. 

Interestingly, however, Claridge’s Hotel failed in its TMA s. 10(2) claim as the judge found that it could not show genuine use of the mark in respect of relevant goods (as they were provided free to guests in the price of a room, rather than sold separately), and indeed the defendant succeeded in having the hotel’s CLARIDGE mark revoked in certain classes (toiletries) and its specification narrowed in others.

Passing off is the cause of action most frequently relied upon when a brand-owner is seeking to prevent a competitor from using similar packaging or get-up in order to benefit from associated goodwill in the product.  In this case, however, the claimant manufacturer of makeup powder compacts was able to rely upon its copyright to prevent Aldi from producing look-alike products for sale in its stores.  The judge agreed with the claimants that Aldi had infringed their copyright both in the design of the lid of the powder compact and also in the design seen to be embossed (i.e. impressed) upon the powder inside the compact when first opened.