Posts Tagged ‘online advertising’

Fighting over flowers…

Friday, March 25th, 2011

M&S has purchased ‘interflora’ as an adword (a Google search for Interflora now displays an advertising link to M&S’ flower delivery service). Does M&S’ use of the word infringe Interflora’s trade mark rights?

The Advocate General has now provided an opinion in the case of Interflora v Marks & Spencer stating that a trade mark owner can forbid the use of a trade mark in such circumstances where the advertising link:

  • is liable to lead some members of the public to believe that the competitor is a member of the trade mark owner’s commercial network; and/or
  • displays or mentions the trade mark and the advertiser thereby attempts to benefit from its power of attraction, reputation or prestige

Surprisingly the Advocate General believes that the advertisement may confuse searchers in to believing that M&S is part of the Interflora network. If the court’s hypothetical searchers are so easily confused then adword purchasers will need to select their adverts very carefully.

Alex Kynoch

Alex Kynoch
0115 976 6528
akynoch@brownejacobson.com

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ASA clarifies its online remit

Friday, October 8th, 2010

Last month we reported that the ASA plans to significantly extend its online remit. Our opinion was that this would bring much new material into their territory, and that your competitors may start complaining to the ASA if they feel there is potentially misleading information on your website.

This issue has clearly now been picked up by the ASA and CIPR. The ASA have clarified that “online public relations”, defined as “press releases, other public relations material and editorial content”, are not covered. The ASA will be concerned only with marketing communications, including advertising, sales promotion and direct marketing.

In our view, the boundaries of the above definition are currently insufficiently clear to prevent an influx of complaints once the new system gets underway. However CIPR will be giving further guidance, including examples of common types of activities considered as “public relations”– whether this will resolve the issue remains to be seen.

Posted by Oliver Sweeney, who specialises in regulatory matters; including compliance, representation e.g. company prosecutions and public inquiries; transport issues; commercial litigation, including reputation management, contractual litigation and injunctions.

Oliver Sweeney

Oliver Sweeney
0115 976 6247
osweeney@brownejacobson.com

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ASA to investigate your website

Wednesday, September 1st, 2010

The Advertising Standards Authority (ASA) today announced that it will be extending its remit to cover marketing communications which appear on businesses’ own websites. Previously, the ASA’s online coverage only extended to paid-for adverts. The change will come into force on 1 March 2011.

This is a significant change, as it brings a large amount of new material into the ASA’s territory. The ASA will now have the power to, for instance, examine claims made about your product on your website, and pronounce that they are misleading, or socially irresponsible. The ASA would then require that such claims not be made again. Businesses which operate primarily online through their own website could find themselves subject to ASA investigation for the first time.

An adverse ASA adjudication can produce a great deal of negative publicity, and in addition the ASA have decided that they may in future place their own advertisements online, to be found by search engines, to name and shame advertisers who refuse to comply with their rulings. For this reason your competitors may look to instigate a complaint if they feel there is misleading information on your website. Businesses should take the opportunity now to submit their website’s content for review, to avoid the risk of a complaint.

Posted by Oliver Sweeney, who specialises in regulatory matters; including compliance, representation e.g. company prosecutions and public inquiries; transport issues; commercial litigation, including reputation management, contractual litigation and injunctions.

Oliver Sweeney

Oliver Sweeney
0115 976 6247
osweeney@brownejacobson.com

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First blog censured by the PCC – will you keep reading?

Wednesday, March 31st, 2010

On Tuesday it was reported that the Press Complaints Commission had made its first ever adjudication against a blog.  The blog in question was Rod Liddle’s piece which stated that “the overwhelming majority of street crime, knife crime, gun crime, robbery and crimes of sexual violence in London is carried out by young men from the African-Caribbean community.” A complaint was made about this particular comment to the PCC.

The Spectator was unable to provide evidence to substantiate this factual statement, and so the PCC upheld the complaint.

What was interesting about the decision was that the Spectator argued that blogging is a conversational medium, often provocative, in which readers were able to disagree with the writer by responding on the same page. The Commission recognised this argument, but stated that a publisher still had to be able to substantiate the factual statements it published, and could not rely merely on publication of critical reaction to the piece by members of the public.

Even online, the PCC requires the orthodox press to check their facts before publishing. But we live in a world of social media, internet rumours and the 24-hour news cycle. Is regulation a “gold standard” which ensures that consumers will continue to come to orthodox publishers for their news and comment?

Fiona Carter

Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com

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The ASA extends its reach online

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:

  1. marketers must hold evidence to substantiate their claims
  2. marketers should ensure that prices are clear and match the products illustrated
  3. special care should be taken when products intended for adults may fall into the hands of children
  4. 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?

Fiona Carter

Posted by Fiona Carter
0115 976 6224
fcarter@brownejacobson.com

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