Note: This advice is given by the CAP Executive about non-broadcast advertising. It does not constitute legal advice. It does not bind CAP, CAP advisory panels or the Advertising Standards Authority.
Claims found in company names, website names, website addresses, website titles, sponsored ads and product names must comply with the CAP Code.
In the past, the ASA has Upheld complaints in relation to words in company names, such as "association" and "advisory service" because they implied that the company was a member of an independent, professional organisation or trade body (i4c (Pyschic Reading) Ltd, 16 February 2005, and David & Co Financial Advisers, 1 September 2004). Company names that include words such as "independent" or "impartial" can mislead if advertisers are partial or provide biased advice (C-MAC Ltd, 9 May 2001).
Company names and registered trademarks
If a company name, which is also a registered trademark, is likely to mislead consumers, because the claim is unproven, or otherwise unacceptable under the CAP Code, a prominent disclaimer should be included in the ad, in order to prevent consumers from being misled.
A trade mark registration can be for a business name, brand name, product name, logo, slogan or other trade mark. The registered trade mark symbol (®) indicates that the trade mark has achieved registration. It will be protected under the Trade Marks Acts 1994. The symbol should not be used if the mark is not registered (Direct Response Fulfilment plc, 8 January 2014). This will mislead consumers and is likely to be unlawful. Rather, the trademark symbol for unregistered trademarks (™) should be used instead.
In general, if a company name which is an unregistered trademark includes an unproven or otherwise unacceptable claim, the marketer should adopt a different trading name.
A trade mark must be registered in order to benefit from the rights that are granted on its registration. It is important to note that disclaimers should only be used to qualify names which are registered trademarks. Marketers disclaiming problematic claims in names of unregistered trademarks, are likely to breach rule 3.9 of the Code, for contradicting rather than clarifying the claim in the name.
Marketers can conduct trade mark searches to ensure that no other business uses the same or similar name to what they propose to use, and should seek legal advice in order to understand their legal rights.
Marketers must not misrepresent to consumers that their product or service is from a third party, through their company name or otherwise, in order to take advantage of that third party’s reputation and goodwill. This is also known as passing off.
The ASA investigated an ad headed "Scottish Spirits Ltd" which contained no explicit claims that the whisky Scottish Spirits produced was Scotch Whisky. However, the company name, website address, and the visual elements of the ad created ambiguity over whether Scottish Spirits were a Scottish company and sold Scotch whisky. Moreover, the ASA had not seen any evidence that their trademark was registered (Scottish Spirits Ltd, 15 September 2010).
Marketers should distinguish themselves from other marketers so that they do not give the impression that their company is the same as another, or that it is connected to a third party.
Chairs and Beds Direct Ltd promoted rise and recline chairs on their website and included an image of a label with the text "Mobility Scotland". The URL for the website was www.mobility-scot.co.uk. The complainant, Mobility Scotland Ltd believed that consumers were likely to be confused as to the identity of the advertiser and that the marcom took unfair advantage of their name and reputation. The ASA noted that the two companies operated in the same area and considered that consumers were unlikely to distinguish between them. Rather, they were likely to believe that the ad was for Mobility Scotland Ltd given that the URL for the Chairs and Beds website (www.mobility-scot.co.uk) and the website title ("Mobility Scotland") was similar to Mobility Scotland Ltd’s website (Chairs and Beds Direct Ltd, November 2011).
In another case, Mazda Motors UK Ltd complained about the website of Mazda UK Ltd because at the top of every page, the marketer included the claim “Mazda UK. We are a direct outlet for main dealer part exchanges, ex-lease and company vehicles.” An image of wings, similar to the Mazda UK Ltd logo was included. The ASA considered it likely that consumers would understand from the URL, logo, trade name and text in the ad that Mazda UK was officially linked with Mazda Motors, for example as an authorised dealer. There was no official connection between the two companies, and so the ASA considered that the ad took unfair advantage of the reputation of Mazda Motors' trademark name, trademark logo and trade name (Mazda UK Ltd, 19 December 2012).
It is important to note that the registration of a name of a limited company does not give an unrestricted right to use the name in a manner likely to mislead.
While claims in URL’s like, www.makemebeautiful.co.uk, might be considered puffery, marketers should be careful about including an unsubstantiated claim or claims that are prohibited by the Code, in their website name.
The ASA has Upheld numerous complaints in cases where marketer’s website addresses have suggested that the marketer was affiliated with another company. These included cases where the website name implied a connection with the Driver and Vehicle Standards Agency (DVSA) (TADServices Ltd, 16 July 2014), a link with the NHS (Esta Visa Ltd, 19 September 2012) that the marketer was endorsed by the government (Halliwell McGregor & Docherty, 10 July 2013), and for implying that the advertiser was the official Telephone Preference Register (Telephone Preference Register, 7 September 2011).
In 2013, the ASA considered that the overall impression of a website, the prominent use of the word "official" in the URL and the headline claim "UK Official Deed Poll Service" was likely to lead consumers into believing that the advertiser was connected with the UK Government, and that they would be using an official government deed poll service. Evidence had not been seen to that effect, and so the complaint was Upheld (Mohammed Saghir Anwar, 23 October 2013).
As an aside, marketers must not give the impression that they are based in the UK when they are not (Top-battery.co.uk, 12 February 2014, UK-battery-shop.co.uk, 14 August 2013).