Wood Trade Marks and Design Limited

Minivator Ltd have just had their wrists slapped by the UK Advertising Standards Authority (ASA) because they got their ad text wrong.  They ran a promotion where they promised to donate 50% of the profits to Help the Aged.  Unfortunately, the donation was only meant to be from the sales under the promotion, NOT the whole business.

A competitor challenged whether the advert was misleading and could be substantiated – the ASA found that although the promotion had raised substantial amounts for charity, the advert was misleading.  Another example of how you HAVE to use really tight copy on your adverts.  If you don’t, competitors can make the most of your slips of the pen!

If you want to read the full decision then go here http://bit.ly/bsIaXq

ALLI is a weight loss drug.  On the packaging it says you must not use it at all if you are below a certain weight.

Which is great.. unless you get your maths wrong and convert kg into stone incorrectly.. which is what they have done on the new packaging.

For example, if you are 4’10” then you should not use it unless you weigh over 63kg.  They convert this as 9 stone 8 pounds.

However.. 63kg is 138.6 pounds.  10 stones is 140 pounds so you’ll understand it is a just under 10 stones – rounded up it is 9 stone 13 pounds.

How did this go wrong? Well, if you divide the pounds by 14 you get 9.9.  It looks like they just copied that in, not realising that this is a decimal amount – you have to multiply the .9 by 14 to get the ACTUAL number of pounds.

So.. it seems that people are being sold ALLI when they are not safe to use it.  All because of poor basic maths at GSK. I wish it were just one mistake in that table, but they are getting it wrong for all the heights/kg weights on the packs.  I just hope there are no serious consequences!

Trade marks are a difficult beast – some try to use them to stop their competitors commenting on their behaviour.  We see this in many forms:

1. Trade mark owners trying to seize back domain names which have the trade mark in the name when they are being used for criticism sites;

2. Trade mark owners trying to suggest that competitors cannot use their trade marks when they criticise them; and

3. Trade Mark owners trying to use trade marks to stop people using the marks in Adwords.

All three situations are difficult, as there is inherently nothing wrong in commenting and using trade marks where the use is to identify the competitor.  The test is whether the use is in accordance with honest business practices, however, and if you go to far then you stray outside the realms of acceptable practice.  Whether it is acceptable practice or not may be difficult to assess – some will be put off by receiving threatening letters even when they have a “gut” feeling that they should be able to keep using the mark.

Further problems arise where someone has a logo – are you going too far if you use the logo?  If you could quite easily identify them just by the word part (think ESSO) then it may well be that using the logo may go too far.

In the case of AdWords, there may be a difficult “squeeze” involved.  If you want to say that JOHN SMITH vodka is made by underpaid child labour, you may want to use the trade mark JOHN SMITH as an AdWord and also say in the text “Read here how JOHN SMITH is made by child labour”.  The problem comes that Google will routinely reject the advert (and take it down if complained about) on the basis that the trade mark is in the advert text.  This is in their terms of service, so it’s a matter of Google’s terms with advertisers rather than a legal requirement.  If you don’t make the advert clear, however, then the trade mark owner may suggest that you are conducting a “bait and switch” site, attracting people by suggesting that the site is real/official/authorised.  If they successfully argue that then you may find yourself on the wrong side of a trade mark case.

The centre ground would appear to be to use wording which makes it clear that it is not official – something like “Read the truth about child labour that they don’t want you to read!”.  It seems unlikely that anyone would be confused, and you have made it clear what they will find.  Nevertheless, you should probably expect to have to explain your actions at some point.

By the way, in case anyone is in ANY doubt, nothing on this blog constitutes legal advice – don’t simply rip off my comments and think I’ve given you “proper” watertight legal advice!

I was reading a very interesting story on the tube yesterday.

Cristiano Ronaldo is a former World Footballer of the Year, and is apparently pretty good looking.  He had his picture taken for Vanity Fair by Annie Liebovitz for a special on the upcoming World Cup.  He was probably quite pleased with the fact that he was to be on the front cover.

Unfortunately, he is sharing the cover with another player shot for the magazine.  Now, allegedly, he is threatening to sue the magazine.  It made me think about two very interesting questions:

1. If you are perceived as quite a precious diva, is it wise to throw a tantrum about sharing the stage in such a way?

2. How much control should we have over our image?

The reality is that Cristiano agreed to the shoot, seemingly happy to be on the cover.  It did his profile no harm, particularly in the US, where perhaps he is less well known.  He has just appeared in adverts, so clearly raising his profile means a larger pay check next time.  Should he be able to whine now?  Well, if there had been a suitably worded agreement – a final veto on the images - then yes.  I suspect, however, that there was not.  This was Annie Liebovitz, after all.

So, who leaked the story?  Was Cristiano hoping for sympathy, or were Vanity Fair trying to dissuade Cristiano from taking things further?  I suspect that it was the latter – perhaps the term WAS there and they breached it… I guess we’ll never know!

Adverts should be fair and should not cause offence to public feeling.   The association representing black cab drivers have been rapped on the knuckles for two recent adverts which suggested that non-members (i.e. all taxi drivers that are not black cabbies) and foreign taxi drivers were unreliable, incompetant and underhand.

Here’s the transcript of one advert (courtesy of the ASA):

“One radio ad, broadcast on LBC, featured a man in the back of a cab, with a driver who appeared to be of Eastern European descent. A sat-nav system was heard saying “If possible please make a U-Turn”. The passenger then said “Hey, you told me that you knew the way!” and the driver responded “Don’t blame me Mister, blame the sat-nav. I haven’t done the Knowledge … Don’t worry Mister, I’ll get there. Eventually”. The passenger said “But I am going to miss my job interview!” and the driver replied “No worries, I can get you a job at my firm. You got your own sat-nav?” A voice-over then stated “Don’t take a chance with your future. Take a tip from the Licensed Taxi Drivers Association. The LTDA. Next time use a real cab”

The association said that it believed that listeners would understand the message that people should not use unlicensed cabs, but the Advertising Standards Authority (ASA) noted that the advert made a point of the fact that the incompetant cab driver in the advert had not done “the knowledge”, something that black cab drivers do but other cab drivers do not.  It was possible to be a licensed cab driver without doing “the knowledge”.

The ASA also noted that although short radio adverts often use stereotypes to establish characters, these should not perpetuate misconceptions or prejudices.  The took the view that they had done so in these adverts.

The message is pretty simple – don’t perpetuate sterotypes that are damaging, and be careful what comparisons you make.  It follows on from a decision earlier in the year where Reed were deemed by the ASA to have breached advertising rules by having a tyrannical boss character with a strong German accent.