Ads & Brands Law Digest: August-September2020

Advertising & Marketing

ICO fines Digital Growth Experts Ltd £60,000 for spam texts

The ICO has fined DGEL £60,000 for sending spam texts without consent. The texts promoted a hand sanitiser claiming that it was "effective against coronavirus".  DGEL gathered data from a number of sources, none of which provided valid consent under the Privacy and Electronic Communications (EC Directive) Regulations 2003. 

When assessing the level of the fine, the ICO considered that DGEL had provided unclear and inconsistent explanations for its direct marketing practices. Neither did it provide evidence that it had received consent to send the text messages. The ICO also said that the fact that DGEL had tried to capitalise on public concern and benefit financially from the COVID-19 pandemic, was an aggravating feature. The ICO also issued DGEL with an enforcement notice ordering it to comply with the Regulations within 30 days of receiving the notice. The case shows the ICO is still taking the issue of spam texts and emails seriously.

Read more here.

ASA issues statement on depiction of protective measures in adverts

The ASA has issued a statement on how covid-protective measures should be depicted in adverts. The statement sets out three guiding principles. The first is that ads which actively discourage protective measures such as mask wearing or social distancing are likely to be irresponsible in all circumstances and therefore breach the advertising codes. The ASA will be likely to investigate such ads with a view to banning them.  

The second is that ads which are responsibly created and which make explicit reference to the existence of the pandemic must, where relevant, show depictions of social distancing, the correct use of face masks and other protective Covid-19 measures in line with current government advice at the time the ads were created.  

The final principle states that ads which are responsibly created but which do not explicitly reference the existence of the pandemic would not be likely to need to depict coronavirus protective measures such as social distancing and the use of face masks.

Read more here.

CAP and BCAP jointly consult on banning cosmetic interventions advertising to under-18s

CAP and BCAP have launched a joint public consultation on introducing new rules that would prohibit advertising for cosmetic interventions from being targeted the under 18s. CAP and BCAP wish to explore whether regulatory change is necessary to ensure that children and young people’s exposure to ads for cosmetic interventions is appropriately limited. 

This follows ongoing public health and political concerns about the potential harm of cosmetic interventions advertising on children and young people when placed alongside body image pressures and mental health, as well as the inherent risks and potential complications of those procedures. The consultation ends on 22 October.

Read more here.

CAP issues new guidance on guarantees

CAP issued guidance on guarantees, which among other things, explains how the term "guarantee" can mean different things in different contexts, which is something that is commonly misunderstood. The term is often used interchangeably with the word "warranty" to mean a promise to fix or replace a product if it goes wrong within a specified period. It can also be used in the context of a price promise or a promise that a product will perform in a particular way. CAP also emphasises that if you offer a guarantee, you must honour it.  Although the rules are not new, it is useful to have clear guidance.

Read more here.

ASA bans ad on basis it was likely to cause offence on grounds of race

A Facebook post featured the headline “BLACK CARS MATTER", and the copy went on to say: "I ASKED HOLLY FOR A HEADLINE FOR THIS A4…AND SHE SAID: ‘ONCE YOU GO BLACK, YOU NEVER GO BACK!’”. The ad prominently featured a raised fist with a wristband displaying the Audi logo alongside an image of a black Audi. Further text stated “AUDI A4 BLACK POWER EDITION... MANUAL GEARBOX (BIG GEARKNOB)”.

Unsurprisingly, the ASA upheld complaints that it was offensive and potentially trivialised the serious issues raised by the BLM movement as well as fetishising black men and the ad was banned.

Read more here.

A complaint against a used car company's radio ad that reversed the usual custom of putting terms and conditions at the end of an advert by instead opening with them was upheld by the ASA. The complainant believed listeners would interpret them to be for the preceding ad rather than being applicable for the ad in question and argued that the ad was therefore misleading. 

The ASA rejected the argument that the ad had been structured in an attempt to ensure the prominence of the T&Cs because they were stated before any other information, such as the identity of the advertiser or product was heard.

Read more here.

ASA issues report on protecting children online

The ASA has published the findings from its latest online monitoring sweep, which it uses to identify and tackle age-restricted ads appearing in children’s media. Advertisers placing age-restricted ads online are required, under the advertising codes, to target their ads away from child audiences. 

The ASA found some ads broke the rules, but the majority were unlikely to appeal to children. It is taking follow-up action to contact the advertisers whose ads broke the rules to secure the removal of the problem ads; and warned the advertisers to review and, as necessary, amend their practices to ensure they target future ads responsibly.

The ASA will run this monitoring exercise quarterly over the next twelve months, to pick-up instances of and take action where age-restricted ads are served to child audiences. The ASA will report the figures as well as about compliance action.

Read more here.

CAP publishes response to its call for evidence on children's recognition of online ads

CAP has published a statement setting out its response to the call for evidence it issued in October 2019 about children’s recognition of online advertising. Having assessed the evidence received, CAP does not propose to change its current policies. However, it acknowledges that this is an important policy area. Online media is rapidly evolving and becoming an ever more important part of children's media lives. In the absence of ASA casework, and given the limited response to its call for evidence, including the limited citations of academic evidence, CAP considers its guidance may require further development. CAP will continue to monitor emerging evidence and will launch monitoring and compliance work later in 2020. This will include more proactive testing of adherence to the guidance in key sectors such as toys, video games, entertainment, food and soft drinks.

Read more here.

Competition Law & Regulatory

CMA issues statement on “loyalty penalty” case

The CMA published its third update on its loyalty penalty investigation in five key markets (mobile, broadband, household insurance, cash savings and mortgage markets). A loyalty penalty is where suppliers charge longstanding customers more than new customers, or those who renegotiate their deal for the same goods or services.The update highlights the effect that the COVID-19 outbreak has had on the investigation and how it is affecting consumers.

Read more here.

Government launches call for evidence on video game loot boxes

The Government has launched a call for evidence on the impact of loot boxes in video games, to examine concerns they may encourage or lead to problem gambling. Loot boxes will be considered alongside a review of the Gambling Act. The call for evidence will be open until 22 November 2020.

Read more here.

Government announces obesity strategy

The Westminster government announced its obesity strategy, which includes resurrecting earlier plans to limit the marketing of HFSS foods. There are two key points.  The first is legislating to end the promotion of foods high in fat, sugar or salt (HFSS) by restricting volume promotions such as buy one get one free, and the placement of these foods in prominent locations intended to encourage purchasing, both online and in physical stores in England.

The second is banning the advertising of HFSS products being shown on TV and online before 9pm and holding a short consultation as soon as possible on introducing a total HFSS advertising restriction online.

It’s debatable whether banning the advertising of chocolate will lead children to eating more fruit and vegetables, but we wait with baited breath for the government’s further proposals.

Read more here.

Trade Marks & Domain Names

EU Court of Justice gives green light to registration of ‘MESSI’ mark by footballer Lionel Messi

Lionel Messi (the footballer – need we say?) first filed his application to register a figurative EU trade mark including his surname “MESSI” as long ago as August 2011, his intended use classes including those for sports clothing, footwear and equipment.  His application was opposed by the proprietors of an existing EU word mark – ‘MASSI’ – registered for the same types of goods, and in 2013-14 the EU Intellectual Property Office upheld the opposition on the grounds of a likelihood of confusion between the two marks, and dismissed an appeal against that decision.  

However, Lionel Messi has since been more successful, with the General Court and now the Court of Justice of the EU holding that the EUIPO’s decisions should be annulled.  Despite the visual and phonetic similarities between the two marks, the courts both held that the football player’s reputation (i.e. the fame associated with his surname ‘Messi’) was sufficiently established – amongst the general public, as well as amongst football fans – to counteract the potential for confusion.  Previous case-law, particularly in the UK, has not always favoured the registration of trade marks for the names of already-famous people, bands, etc, (one reason being that the public may not realise that the name is being used as a trade mark).  The ‘MESSI’ ruling may give such applicants greater confidence.

Read more here.

Registration of ‘The Royal Butler’ mark refused after opposition by the Lord Chamberlain

Readers of this Digest will be familiar with the need for caution in referring to members of the Royal family in advertising, and also with the CAP Code restrictions upon the use of the royal arms and symbols – which are policed by the Lord Chamberlain on behalf of the Queen.  There are also special restrictions in the Trade Marks Act 1994, including the need for consent on behalf of the Queen or the relevant member of the Royal family before a mark is registered that might “lead persons to think that the applicant either has or recently had Royal patronage or authorisation…” (section 4(1)(d)).

This provision was relied upon by the Lord Chamberlain, on behalf of the Queen, to oppose an application by a former butler in the household of the Prince of Wales to register a figurative mark that included a crowned golden lion device and also the words ‘THE ROYAL BUTLER’.  The mark had been applied for in relation to educational and entertainment services, and the UKIPO Hearing Officer found that in such contexts the mark would indeed lead members of the public to think that the applicant had recent Royal Patronage.  As it had been demonstrated as a matter of fact that the Queen had not consented to such use, registration of the mark was refused.

Read more here.