Background

Summary of Council decision:

Two issues were investigated, both of which were Upheld.

Ad description

A flyer and a brochure for a holiday company:

a. The flyer stated "Join the first choice for Single Travellers … SOLITAIR The first choice for single travellers".

b. The brochure stated "SOLITAIR The first choice for single travellers". Small print on the back stated "The First Choice for Single Travellers is for trademark purposes".

Issue

The complainant challenged whether:

1. the claim "The first choice for single travellers" in ad (a) was misleading because the basis of the claim was not sufficiently clear; and

2. ad (b) was misleading because the text "The First Choice for Single Travellers is for trademark purposes only" was not sufficiently prominent.

Response

Solitair Holidays provided a copy of their terms and conditions, which they pointed out stated "Solitair trademark does not imply to any sales or revenue".

Assessment

1. Upheld

We noted Solitair Holidays held a trademark for the claim "Solitair - The first choice for single travellers" and had included a qualification of the claim in their terms and conditions, which stated "Solitair trademark does not imply to any sales or revenue." However, we considered the fact that the claim was not based on unit sales or turnover was material information that might have an impact on a consumer's transaction decision and, therefore, its position in the terms and conditions was not sufficiently prominent. Because we considered the basis of the claim was not sufficiently clear, we concluded the ad was misleading.

The ad breached CAP Code (Edition 12) rules  3.1 3.1 Marketing communications must not materially mislead or be likely to do so.  and  3.3 3.3 Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
 (Misleading advertising),  3.10 3.10 Qualifications must be presented clearly.
CAP has published a Help Note on Claims that Require Qualification.
 (Qualification) and  3.33 3.33 Marketing communications that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product.  (Comparisons with identifiable competitors).

2. Upheld

We noted Solitair Holidays had included a qualification to the claim "The First Choice for Single Travellers" on the reverse cover of the brochure, in small print at the bottom of the page, which stated "The First Choice for Single Travellers is for trademark purposes". We considered that a qualification informing consumers that the basis of the claim was not related to unit sales or turnover figures was material information that might impact a consumer's transactional decision. We considered consumers might not understand from the qualification that the claim was not based on unit sales or turnover, and the claim's position, on the reverse of the brochure in small text at the bottom of the page, was not sufficiently prominent. Because we considered the qualification was not sufficiently clear or prominent, we concluded the ad was misleading.

The ad breached CAP Code (Edition 12) rules  3.1 3.1 Marketing communications must not materially mislead or be likely to do so.  and  3.3 3.3 Marketing communications must not mislead the consumer by omitting material information. They must not mislead by hiding material information or presenting it in an unclear, unintelligible, ambiguous or untimely manner.
Material information is information that the consumer needs to make informed decisions in relation to a product. Whether the omission or presentation of material information is likely to mislead the consumer depends on the context, the medium and, if the medium of the marketing communication is constrained by time or space, the measures that the marketer takes to make that information available to the consumer by other means.
 (Misleading advertising),  3.10 3.10 Qualifications must be presented clearly.
CAP has published a Help Note on Claims that Require Qualification.
 (Qualification) and  3.33 3.33 Marketing communications that include a comparison with an identifiable competitor must not mislead, or be likely to mislead, the consumer about either the advertised product or the competing product.  (Comparisons with identifiable competitors).

Action

The ad must not appear in its current form. We told the advertisers to ensure the qualification that accompanied the registered trademark "Solitair - First choice for single travellers", which made clear that they did not have a higher turnover or more unit sales than other single traveller holiday companies, was sufficiently clear and prominent.

CAP Code (Edition 12)

3.1     3.10     3.3     3.33    


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