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.
Rule 3.41 states that marketing communications must not mislead the consumer about who manufactures the product. In 2012, the ASA held that the using the Epson logo on a website which sold Epson-compatible printer cartridges manufactured by another company, was likely to mislead consumers (DVD-and-Media.com, 21 November 2012). The ASA has also held that using “NHS” in the product name for ovulation predictor test kits was likely to lead consumers to believe that the kits were used as standard by the NHS (lookersgirl, 16 November 2011).
Placing the company name or logo in a prominent position or font could help consumers differentiate between the two companies’ ads (Vauxhall Motors Ltd, 15 December 2004), but that might not be enough if the rest of the ad wrongly suggests that the advertiser has taken over from the company it is imitating (Ribble Valley Promotions Ltd, 27 October 2004, and Setmasters Ltd, 1 March 2006).
When considering whether a marketing communication breaches Rule 3.41, both CAP and the ASA will consider the nature of the products being advertised. In 2005, the ASA rejected a complaint by a watch company about an ad for a new model of motor car. Both companies used the slogan “Beware of Expensive Imitations” but because the advertiser sold cars and the complainant sold watches, the ASA considered that consumers were unlikely to be confused. In reaching that decision, the ASA also had regard to the fact that the advertiser’s name was clearly stated and the creative style was materially different.
Marketers should bear in mind that consumers may become confused between ads they have seen at different times and in different contexts. However, often when the two ads are seen side by side, they are found to be different enough not to breach the Code.
Rule 3.44 states that marketing communications must not present a product as an imitation or replica of a product with a protected trade mark or trade name. Marketers should seek legal advice if they are concerned about a possible trademark or copyright infringement.