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Ads & Brands Law Digest: December 2021

06 December 2021

Welcome to the December 2021 edition of our Digest, covering legal and regulatory developments from the last few weeks relevant to advertising, marketing and brand-owning businesses. As usual, for each item we provide a succinct summary accompanied by a link to the full text of the relevant official source or our own report.

In this issue:

CAP and BCAP change rules for ads for cosmetic interventions, CAP and BCAP issue revised guidance on responsibility and problem gambling, ASA collaborates with online platforms to research alcohol ad targeting in social media, ASA issues statement on crypto-assets, SMMT publishes principles for the responsible marketing of automated vehicles, ICO issues opinion on data protection standards for AdTech, European court finds inbox advertising is direct marketing and European Commission proposes new rules on political advertising. We also look at infringement proceedings over STEALTH branding.

Advertising and marketing

CAP and BCAP change rules for ads for cosmetic interventions

Following a consultation in 2020, CAP and BCAP are introducing new targeting restrictions that prohibit cosmetic interventions advertising from being directed at under 18s.

They say that children and young people are particularly vulnerable to body image pressures and negative body image perceptions can have an impact on their self-esteem, wellbeing, mental health and behaviours. As such, CAP and BCAP consider that there is a persuasive case for implementing age-based targeting restrictions for cosmetic interventions advertising. In addition, they say that the new targeting restrictions would help appropriately limit children and young people’s exposure to cosmetic interventions advertising, and play a part in mitigating the potential wider body image related harms experienced by those age groups.

The new targeting restrictions will come into effect on 25 May 2022. The new rules in the CAP and BCAP Codes will require that:

  • Ads for cosmetic interventions must not appear in non-broadcast media directed at under-18s;
  • Ads for cosmetic interventions must not appear in other non-broadcast media where under-18s make up over 25% of the audience; and
  • Broadcast ads for cosmetic interventions must not appear during or adjacent to programmes commissioned for, principally directed at or likely to appeal particularly to under-18s.

For more information, see here.
CAP and BCAP issue revised guidance on responsibility and problem gambling

 Changes to CAP and BCAP’s responsibility and problem gambling guidance announced in August come into effect on 1 November. The updated guidance was developed as part of the consultation process responding to the findings of GambleAware research published in 2020. The guidance supplements the current protections in the Codes as well as existing guidance, to ensure that gambling advertising does not encourage or condone risky or irresponsible behaviour.

The new points of guidance restrict ads that:

  • Present complex bets or other gambling products in a way that emphasises the skill, knowledge or intelligence involved and could therefore lead to erroneous perceptions of risk or control.
  • Present gambling as a way to be part of a community based on skill.
  • State or imply that offers (such as those involving money back, ‘free’ bets or bonuses, or enhanced odds) are a way to reduce risk.

For more information, see here.
ASA collaborates with online platforms to research alcohol ad targeting in social media  The ASA has published findings from a project, in which it collaborated with five major platforms popular with children, to identify trends in the targeting of ads by alcohol brands in logged-in social media. Between 1 February 2020 and 31 March 2020, Facebook, Instagram, Snapchat, Twitter and YouTube submitted brand-anonymised targeting data to the ASA relating to over 2,000 alcohol campaigns.

The ASA identified several incidences of good practices. For example, several alcohol campaigns targeted people who were 25+, minimising the possibility of reaching child account holders. However, it also found that some alcohol brands could and should have done more to minimise the possibility of their ads being delivered to children.

Overall, the ASA identified eight key insights on targeting practices, including that a handful of ad campaigns did not appear to use any age targeting at all. For the majority that selected an age 18+ audience, many didn’t select any ‘interests’ options to give greater confidence in reaching an adult, rather than a child. The ASA saw limited evidence of advertisers actively barring their ads from being targeted to audience groups that have interests in topics and themes very strongly associated with under 18s.

The ASA will draw the findings to the attention of the alcohol industry. It is now conducting a follow-up monitoring and enforcement project.

For more information, see here.
ASA issues statement on crypto-assets  The ASA has issued a statement about the advertising of cryptoassets. It is currently investigating a number of crypto-asset ads across different media, where it has concerns about:
  • lack of appropriate risk warnings;
  • the trivialisation of investments in cryptocurrency;
  • ads taking advantage of consumers’ inexperience or incredulity; or
  • irresponsible advertising (for example, creating a sense of urgency to invest).
It intends to provide clarity around its expectations of crypto-asset advertising through its rulings, which it expects to publish in mid-December. It will then carry out proactive monitoring and enforcement to tackle non-compliant ads for crypto-assets. It will continue to review its policies around crypto-asset advertising.

For more information, see here.
SMMT publishes principles for the responsible marketing of automated vehicles The Society of Motor Manufacturers and Traders (SMMT) has published guiding principles for the responsible marketing of automated vehicles. These principles highlight, for example, that automated driving features must be clearly described so as not to mislead, that an automated feature must be clearly distinguished from simpler assistance features and, conversely, that assisted driving features should not be described in a way which might suggest to consumers that they provide an automated driving function.

The principles also highlight the need to comply with CAP and BCAP Code rules.

For more information, see here.

 

Regulatory

Information Commissioner issues opinion on data protection standards for adtech The ICO has published an opinion which sets out clear data protection standards that companies must meet to safeguard people’s privacy online when developing new advertising technologies. The privacy standards come as a warning to companies that are designing new methods of online advertising, that they must comply with data protection law and stop the excessive collection and use of people’s data.

Currently, one of the most significant proposals in the online advertising space is the Google Privacy Sandbox, which aims to replace the use of third party cookies with alternative technologies that still enable targeted digital advertising. The ICO has been working with the Competition and Markets Authority to review how Google’s plans will safeguard people’s personal data while, at the same time, supporting the CMA’s mission of ensuring competition in digital markets.
Other industry players have also been developing different initiatives, so that people’s preferences are taken into account. The ICO says that it welcomes proposals that respect people’s privacy rights and can demonstrate how they comply with the law. The Opinion provides clear data protection expectations for any developers in this area.

For more information, see here.
European court finds inbox advertising is direct marketing The European Court of Justice has ruled that ‘Inbox advertising’: the display in the electronic inbox of advertising messages in a form similar to that of a real email, constitutes use of electronic mail for the purposes of direct marketing within the meaning of Directive 2002/58.

Those messages give rise to a likelihood of confusion that could lead a user who clicks on the link corresponding to the advertising message to be redirected, against his or her will, to an internet site displaying that advertisement.

For more information, see here.
European Commission proposes new rules on political advertising The European Commission has proposed a new law on transparency and targeting of political advertising, as part of measures aimed at protecting election integrity and open democratic debate. The proposed rules would require any political advert to be clearly labelled as such and include information such as who paid for it and how much.

For more information, see here.

 

Trademarks

“Stealthy” tactics deployed in defence of infringement proceedings over STEALTH branding In November, the High Court saw the latest skirmish in an ongoing dispute over the right to use the mark STEALTH in respect of audio headsets for gaming platforms. ABP Technology, which registered UK trade marks for STEALTH and STEALTH VR in 2017 and 2019 respectively, has launched infringement proceedings against Voyetra Turtle Beach Inc and its UK distributor, both ABP and Turtle Beach having used STEALTH branding in respect of UK sales of gaming headsets since 2014.

Over the years, ABP hitherto had the upper hand in the dispute – at least in the UK – its trade mark registrations having been obtained despite opposition by Turtle Beach, and a rival application for the STEALTH mark by Turtle Beach having been rejected by the UK Intellectual Property Office, and by the Appointed Person on appeal. ABP’s success at the IPO seems to have been based upon its having started using its STEALTH branding just a little earlier in 2014 than Turtle Beach did.

Turtle Beach has nevertheless continued to use STEALTH on some of its headsets; it is a global operator, and so it perhaps felt that it could not justify a rebrand because of a “local” UK difficulty. ABP unsurprisingly launched infringement proceedings, and – no doubt feeling confident based upon its success at the IPO - asked the court to issue a swift summary judgment in its favour. Such rulings can be obtained without the cost and delay of a full trial if the judge is persuaded that the defendant has no real prospect of successfully defending the claim.

But summary judgment was refused, for two main reasons. First, Turtle Beach deployed a defence of “honest concurrent use” of the STEALTH mark. Although this usually depends for success upon showing that two traders have both used the same mark side-by-side for many years, the judge ruled that duration was not the only factor, and felt that the defendant should be given the chance to bring forward more evidence at a full trial to support its “honest concurrent use” defence.

Secondly, Turtle Beach deployed an arguably more “stealthy” tactic: it sought to add a defence and counter-claim having itself acquired from a third party a different (and previously unused) UK registered trade mark for STEALTH in respect of “hi-fi apparatus, instruments and loudspeakers; parts and fittings for all the aforesaid goods”. The judge felt that gaming headsets arguably fell within this definition, and as Turtle Beach’s STEALTH mark had been registered before that of ABP it might give Turtle Beach the upper hand at the full trial. ABP would usually have been able to invalidate this earlier mark for non-use, but Turtle Beach had cunningly taken a three month licence of the mark before acquiring it, which arguably counted as recent “use”.

It will be very interesting to see how things turn out at the full trial. If the tactic of acquiring an earlier registered mark succeeds, it may be adopted by others in future.

For more information, see here.

 


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