Archive for the ‘Brands’ Category
Friday, April 9th, 2010
Do you own trade marks or brands comprising two letters or a single character? Frustrated that you’ve not been able to register your brand as a domain name in the UK? Well, read on.
Nominet, which runs the register for .uk domain names, which total around eight million, has announced plans to make available those domain names which comprise two letters or a single character (think AA, BA) as well as other reserved names within the second level domains it controls (including .co.uk and .org.uk). Previously these domains were not available due to technical reasons, unless they had been adopted prior to Nominet’s establishment in 1996.
Nominet estimates that around 2,000 such domains would become available and these would first be offered to relevant trade mark owners during an initial “sunrise” period. Prior to the release, Nominet has invited interested parties to offer their views on the release. A summary of responses received to date are published on Nominet’s website. The responses to date seem to be overwhelmingly in support of the release of two-letter domains, but there has been a more cautious response to the release of single character domains – largely because it is perceived that there is less scope for legitimate use of such domains.
The consultation is open until 8 June 2010, and so if you are a stakeholder – maybe your organisation is well known by a two-letter acronym – you can respond to Nominet here.
The release of these domains is certainly a positive step. However, there have to be the correct safeguards in place to protect the interests of legitimate rights owners, and to avoid abusive registrations. This means that Nominet’s dispute resolution service is likely to see an increase in use once these domains become available.
Posted by Mark Daniels
0121 237 3993
mdaniels@brownejacobson.com
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Tags: Brands, Intellectual Property, Nominet
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Friday, March 26th, 2010
This week the Conservative Party launched the cash-gordon.com website, aimed at highlighting the Labour Party’s funding links to Charlie Whelan’s Unite union.
Unfortunately, basic technical errors and the inclusion of a live Twitter feed, led to the site being bombarded with abusive messages and colourful language.
Publishers, including webhosts and hosts of forum boards, can be held liable for the statements they publish, including liability in defamation.
In practice, once webhosts are notified by an aggrieved party that they are, unbeknownst to them, hosting alleged defamatory content, the content is removed.
However, for a high profile website with a live feed such as this one, it would be all too easy to have material widely disseminated before the publisher is even aware of it. By blindly republishing tweets, the Conservative Party has left itself open to such complaints.
Another new media tactic used by the website encourages site users to bombard Charlie Whelan with tweets. This could constitute harassment, for which the Conservative Party could potentially end up liable.
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Tags: advertising, Brands, media
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Friday, March 26th, 2010
ICANN (Internet Corporation for Assigned Names and Numbers) have decided to delay yet again the decision on whether or not to establish the controversial .XXX domain name suffix for adult sites. This issue has now been debated for nearly a decade and it is time that ICANN makes the right decision and establishes the right to sell XXX domain names.
ICANN had previously accepted a request from a domain name registry to be permitted to sell .XXX domain names but subsequently changed its mind after very considerable pressure from a number of conservative groups. Given the very nature of the internet and the fact that it is the most prolific “provider” of adult material surely it is some what bizarre that ICANN should continue to get embroiled in any moral argument or judgement.
In fact to establish the .XXX domain name may well help those so inclined easily navigate their way to these sites, and equally help parents easily identify adult sites so that they can keep their children away. However, others argue that it will be seen as legitimising porn sites. The debate will continue but we can expect a decision in June.
Posted by Declan Cushley
0121 237 3991
dcushley@brownejacobson.com
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Tags: Brands, Domain, ICANN, Intellectual Property
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Friday, March 19th, 2010
This week saw the announcement of several changes to the Committee of Advertising Practice (CAP) codes for broadcast and non-broadcast media after a lengthy consultation with industry bodies, Government and advertising agencies.
One of the changes is proving rather controversial. This is the new Code that allows the charity sector to air comparative advertisements on television and radio that compare one charity with another.
Under the Code, charities will be able to compare the work they do with other charities as well compare the way donations are spent.
The change comes at a time when donations are in a major decline as consumers continue to cut back following the recession.
The Governments view is that the charities sector should not been be seen as a “special category” and should be able to launch comparative advertisements as long as they do not break the rules on comparative advertising.
The change brings charities evermore into the commercial arena as they fight to get consumers’ pounds from their pockets. It will be interesting to see whether charities pay careful regard to the Code and do not for example denigrate their competitors. Or, whether there will be an influx of complaints made that comparisons are being made that are misleading consumers.
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Thursday, March 11th, 2010
The Advertising Standards Authority can require that adverts deemed to be misleading, unfair or offensive, are not to be repeated. But with the expansion of digital media, a noticeable gap in the ASA’s jurisdiction has emerged – the ASA only adjudicates on complaints relating to paid-for advertising.
Now this gap is to be plugged. The Advertising Association has recommended that the ASA’s remit be extended to cover marketing communications on companies’ own websites. It means that website owners will now need to review their own websites’ content to ensure that they can prove that they comply with the CAP codes.
Key provisions from the Code include that:
- marketers must hold evidence to substantiate their claims
- marketers should ensure that prices are clear and match the products illustrated
- special care should be taken when products intended for adults may fall into the hands of children
- claims comparing your products to your competitor’s products are subject to strict conditions.
If the recommendation is adopted, these changes could come into effect from September 2010.
With advertising in digital media becoming increasingly dominant in the marketplace, this was an obvious decision to make. Our immediate thoughts are: will businesses seek to use this to their advantage by complaining about their competitor’s websites? And what implications will this have on the use of user-generated content in marketing?
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Tags: advertising, ASA, digital media, online advertising, Regulatory
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Friday, February 12th, 2010
Toyota’s high profile product recall woes continued this week with the news of the global recall of their flagship Prius hybrid model. The problem is apparently a software glitch, which delays braking under certain conditions. This follows hot on the heels of an entirely separate product recall for faults with the accelerator “sticking” on certain other Toyota models.
From a legal point of view, if vehicles were not recalled and fixed then Toyota would be more likely to face prosecution by the authorities for selling unsafe goods, and they could still face a wealth of civil claims due to injuries caused to the general public. It has also been suggested that Toyota drivers could be committing an offence of dangerous driving, if they ignore the recall notice and continue to drive their vehicles.
Clearly global recalls will be a logistical nightmare, and damage consumer confidence in the Toyota brand – particularly now that it has been reported that there is a separate safety defect in another Toyota model.
It is for this reason that brand owners always need to be prepared to take swift and decisive action in the event of a reported safety defect. Toyota have issued recall notices, they have made a public apology for the problems, they have used YouTube to disseminate information about the accelerator issue, and they have launched a hotline for consumers to call if they are concerned. However, for some people, Toyota could be said to have taken too long to decide on recalls globally. Toyota’s hotline has also been overloaded with calls.
Could better handling of the recall have avoided falling share prices?
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Tags: Brands, Prius, Toyota
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Friday, January 15th, 2010
Apple is already embroiled in an International Trade Commission (ITC) dispute with its competitor and mobile phone giant Nokia over alleged infringement of both parties’ patents . Now Apple, along with RIM (of Blackberry fame) are the subject of a new complaint before the ITC brought by Kodak.
Kodak has already successfully enforced its “picture previewing” patent against Samsung and Sun Microsystems in the recent past. In this new complaint to the ITC, Kodak is seeking to enforce the same patent against Apple and RIM, presumably with a view to securing favourable licensing revenue from the handset manufacturers.
This new action reinforces the view that the big players in the technology market regard the ITC as a forum with considerable bite. The ITC’s ability to force a ban on the supply of infringing products together with the ability to award damages within a process which can be far quicker than the equivalent process through the US courts marks it out as a forum of choice.
However, in a world in which open source and standardised technology is prevalent, one might question whether a readily available ban on supply really encourages innovation, or whether it rather leaves technology providers at the mercy of patentees. An environment in which patentees are encouraged to declare their patents as essential to a particular standard and then make them available to be used under licence on fair, reasonable and non-discriminatory terms also exists, but whilst patentees have the threat of an ITC action at their disposal, they will of course continue to use that to maximum effect.
Posted by Mark Daniels
0121 237 3993
mdaniels@brownejacobson.com
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Tags: Apple, Intellectual Property, ITC, Kodak, Nokia, Patents, RIM
Posted in Brands, Intellectual Property | 1 Comment »
Tuesday, January 12th, 2010
On 11th December, we reported that the BMA were seeking a total ban on alcohol advertising. But, we noted that to date, the Government had stood firm and supported the self regulation of alcohol advertising by the Advertising Standards Authority (ASA).
Well, now the Parliamentary cross-party Health Committee has called for the introduction of minimum pricing per unit of alcohol, together with tighter regulation on the marketing of alcoholic drinks.
Of particular concern are :
- the marketing of alcohol via sponsorship of events at which at least 10% of those in attendance would be under 18, and
- marketing of alcohol via online campaigns, including viral and social network marketing.
The conclusion is that these avenues are poorly regulated by the existing scheme of supervision. Proposals include a suggestion that an independent body be set up to regulate alcohol advertising. This would be a significant departure from the existing scheme of self-regulation.
Any new regulator would no doubt be looking immediately to claim a high profile “scalp.” If these proposals do go forwards, it will become more important than ever for drinks companies to ensure that they have an audit trail, to show that their product marketing is responsible and in accordance with guidelines.
Still – if by April we have a Conservative government (who would be looking to cut public spending, and boost the economy), in our opinion any “nanny state” plans such as these may, in the medium term, be substantially amended, if not shelved altogether.
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Tags: advertising, alcohol, alcohol advertising, ASA, BMA, british medical association, health
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Wednesday, November 25th, 2009
Travelodge has lodged a formal complaint with the Advertising Standards Authority (ASA) over the £29-a-room Christmas promotional campaign run by its rival Premier Inn.
Travelodge complains that it is “very near impossible” for customers to find rooms on premierinn.com for £29.
The complaint from Travelodge comes at a time when an increasing number of companies are turning to promotions as they continue to attempt to attract more customers in the recession. Many hotel chains have responded to big falls in occupancy by cutting room rates or offering value-for-money promotions. However, there has to be a marketing budget allocated to such promotions to make them viable.
The main winner when it comes to promotions is the customer. Travelodge agrees that the hotel industry must offer great value for the customer; however they say that this must be without the caveats.
Under advertising codes of conduct if companies are unable to supply demand for a promotional offer because of an unexpectedly high response or some other unanticipated factor outside their control, they should are expected to offer substitute products/services.
Is the customer going to be the loser in the end if the ASA uphold this complaint? Companies may be discouraged from running promotions through fear that an offer may go further than the marketing budget that it allocates.
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Wednesday, November 11th, 2009
This week Walls have admitted to the Sunday Telegraph that at least half its meat is sourced from pig farms outside the UK. This other meat comes from Denmark, Holland and Germany. However, the labels on its “Lincolnshire ” and “Cumberland” sausages do not set out the foreign origin of the meat.
In their defence, Walls say that the use of the term “Lincolnshire” sausages refers to a traditional recipe, rather than the place from where the meat is sourced. They say that they source as much meat as they can from the UK, and merely complement that with supplies from audited producers in Europe.
Walls sausages are marketed as a distinctly British brand. However, meat from abroad can be significantly cheaper to produce than meat from the UK, and legally, Walls are not required to label their products to indicate that some of its meat content comes from abroad. Indeed, so long as the product is actually manufactured in the UK, it can at present bear the wording “British Made.”
Do you think this is good enough or should manufacturers and retailers be required to explain EXACTLY where the ingredients of products come from – or maybe it’s all a load of old Hogwash?
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Thursday, October 15th, 2009
On Wednesday, the ASA upheld a complaint against a claim made in an advert for the product Actimel – that it was ”scientifically proven to help support your kids’ defences”. The ASA has ordered that the advert be withdrawn.
Danone said they had referred to Actimel as being “scientifically proven” in their ads since November 2007, and that the basis for that claim was a significant body of published scientific evidence that showed that Actimel supported the natural defences of different age groups, including children. They argued that each individual study did not need to demonstrate multiple health benefits, as long as they pointed towards a positive effect for Actimel overall. Indeed, Clearcast had approved an earlier claim made in 2006 that stated “Every morning I like to give my kids Actimel to help support their bodies’ natural defences”. Clearcast’s nutritional consultant was satisfied that the evidence showed that Actimel could support the body’s defences in that particular age group.
The ASA said that the claim in the advert clearly related to healthy children of school age. The ASA said that Danone’s evidence either related to children of other ages, children already in ill health, or did not relate directly to children’s health, or the sample sizes were too small, or the results were not statistically significant. The ASA were concerned that the evidence did not show that all children would see a benefit from consuming Actimel
Who is the victim?
Is it the public who have been misled for (it seems) years – or is it the Brand Owner who is simply trying to sell a “healthy option”?
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Tags: advertising, Brands, Consumer protection, marketing
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Friday, October 9th, 2009
We reported on this page on 2 September that Diageo was suing Sainsbury’s over the supermarket’s alleged copying of its “Pimms” branded product with its own “Pitchers” branded product.
High profile brand owners have traditionally been reluctant to take on supermarkets, who of course provide the major retail outlets with many of their products. We said that brand owners would be watching this case very closely indeed, as if Diageo were successful then it could encourage others to come forward with claims.
However, it would appear that Sainsbury’s and Diageo have amicably settled their differences out of court, with an agreement to rebrand (but not rename) the “Pitchers” product. The settlement will avoid further publicity for the case, and perhaps enable Sainsbury’s and Diageo to do business without the wedge of ongoing litigation between them. More significantly, the settlement avoids the risk of setting a dangerous legal precedent. Nevertheless, there is a chance that such a precedent will still be set by the Tesco and Next case, reported on 22 September.
Look at the new label on our link with the higher profile sainsbury logo and orange segment .
Is that enough to prevent consumers being confused between the Diago original and Sainsbury new product?-
Looking at the new label above (on the right) with the higher profile sainsbury logo and orange segment; Is this enough to prevent consumers being confused between the Diageo original and Sainsbury’s new product?
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Tags: Brands, Consumer protection, marketing, packaging, passing off, trading standards
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Thursday, September 24th, 2009
On Wednesday the ASA upheld a complaint, made by the Asbestos Watchdog, about the accuracy of the statistics quoted in the HSE’s ‘Asbestos: The Hidden Killer’ advertising campaign. The HSE have stated that they are disappointed with the ASA’s decision. They consider it to be only on a technicality and they intend to request a review by the Independent Reviewer of ASA Adjudications.
This case shows how a single complaint by a body with a vested interest could potentially result in an entire campaign being banned from publication, despite an advertiser believing it has sufficient evidence to prove the claim. Many complaints to the ASA are upheld, and overturning an ASA decision on appeal will not be easy.
To minimise the risk of a successful complaint being made, advertisers need to be able to produce significant evidence to substantiate their claims and also seek legal advice both prior to embarking on any advertising campaign, and after receiving any complaint.
Considering the money (in this case public funds) which gets invested in advertising campaigns, is it too easy to get an advert banned?
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Tuesday, September 22nd, 2009
Pimms recently took on Pitchers, and now a few weeks later, Next take on Tesco’s. Next has filed claims alleging that the supermarket has copied up to five of its clothing lines and stolen two design motifs originally designed by Next.
Brand owners have always recognised the value that exists in their designs and their brand. They spend a considerable sum of money to try and protect the rights that they hold in this Intellectual Property (IP). However, over the years copycats have exploited the limited protection that the Courts have afforded brand owners.
Now, it looks like brand owners are ready to have another go at getting the Courts to recognise and protect their IP rights.
However, the Courts seem to be distinguishing “imitation” – i.e. so similar that the public may be confused as to who owns the brand – and “comparison” – where the product is so different that there is no real confusion just an opportunity for consumers to choose the brand they prefer.
Copycat – consumer choice or consumer exploitation?
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Wednesday, September 2nd, 2009
This is the first time we have seen a high profile brand owner take on a Supermarket for copycat packaging since United Biscuits successfully took ASDA on in their claim for passing off in 1997…and it is about time. The cost and uncertainty of the law of passing off has to date deterred brand owners from making a stand. It will be interesting to see whether the implementation of the Consumer Protection Regulations last May has influenced Diageo’s decision to take legal action.
The Regulations provide brand owners with an alternative weapon against those looking to trade off the back of their success by specifically banning “the promotion of a product similar to a product made by a particular manufacturer in such a manner as deliberately to mislead the consumer into believing that the product is made by that same manufacturer when it is not”. Although the Regulations are predominantly part of the criminal regime, it may be that Diageo use their existence in the civil court for emphasis when presenting the case of an intellectual property right infringement.
It remains to be seen whether an enforcer such as Trading Standards decide to investigate this potential breach of the Regulations. However, if they do this would undoubtedly strengthen Diageo’s case as well as give them a right to apply to the criminal courts for an Order for the forfeiture of Sainsbury’s Pitcher.
Brand owners should be watching this space very closely indeed.
Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com
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Tags: Brands, Consumer protection, marketing, packaging, passing off, trading standards
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