Background
Summary of Council decision:
Two issues were investigated, of which one was Not upheld and one Upheld.
Ad description
A website, www.simbasleep.com, and Facebook page for a company that manufactured and sold mattresses, seen on 23 March 2016:
a. The website featured text that stated “Why Choose Simba … Tried and Tested Our Hybrid® mattress was developed with The Sleep To Live Institute who've profiled over 10m people. That's why we know it's the best …”.
b. The Facebook page featured text that stated “We tested our mattresses through extensive research together with The Sleep To Live Institute, involving more than 10 million people and measuring 180 million body profile data points. Discover the rest of our story here: https://simbasleep.com/pages/our-story/”.
Issue
1. The complainant challenged whether the claim in ad (a) that “Hybrid” was a registered trademark was misleading and could be substantiated.
2. The complainant challenged whether the claim “Tried and Tested Our Hybrid® mattress was developed with The Sleep To Live Institute who've profiled over 10m people” in ad (a) and “We tested our mattresses through extensive research together with The Sleep To Live Institute, involving more than 10 million people” in ad (b) were misleading and could be substantiated.
Response
1. Simba Sleep Ltd stated that they had purchased the “Hybrid” registered trademark in April 2016 and became the owner from the agreed date of 18 March 2016. They provided a copy of their written agreement with the seller to demonstrate this transfer of ownership. They said that they were still in the process of notifying the Intellectual Property Office (IPO) of this change, but that this did not have any bearing on their proprietorship of the mark.
2. Simba Sleep stated that they paid a fee to The Sleep to Live Institute (a division of Kingsdown Inc.) to use their testing equipment and research to test the “Hybrid” mattress. They said that the research included over 10 million people’s body profiles. They provided a letter they had received from The Sleep to Live Institute showing that such an agreement had been in place.
Simba Sleep tested the firmness of the mattress in a UK warehouse. The data was sent to The Sleep to Live Institute for analysis and an independent standard testing process was used to determine which body types the mattress was best suited for. This involved comparing Simba Sleep’s data to The Sleep to Live Institute’s “databank” of over 10 million body profiles. which had been gathered using Kingsdown’s patented BedMatch system. Simba Sleep stated that the BedMatch data had 10,157,475 body profiles. A diagnostic system was used to match a person with a mattress that best suited their particular body type and sleeping position as well as for testing mattresses to identify their characteristics. The results of the match were then sent to Simba Sleep showing the types of bodies their mattress was best suited for; it was identified as being medium firm to firm. Simba Sleep believed that this demonstrated that the mattress had been developed together with the Sleep to Live Institute.
Simba Sleep believed that consumers would not interpret the claims “Tried and Tested Our Hybrid® mattress was developed with The Sleep To Live Institute who've profiled over 10m people” in ad (a) and “We tested our mattresses through extensive research together with The Sleep To Live Institute, involving more than 10 million people” in ad (b) to mean that the mattress had actually been tested on over 10 million participants, as this would be highly unachievable. They believed that consumers would understand that the mattress had been tested using secondary data.
Assessment
1. Not upheld
The ASA understood that Simba Sleep had purchased the “Hybrid” registered trademark in April 2016. The signed written agreement between them and the previous owner had identified the “Effective Date” of the transfer of ownership as 18 March 2016. Furthermore, we noted that Simba Sleep were in the process of notifying the IPO of the mark’s change in ownership.
We therefore concluded that Simba Sleep had provided adequate evidence to show that “Hybrid” was a registered trademark that they owned. We concluded that reference to it had been substantiated and was not misleading.
On this point we investigated the ad under CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation) but did not find it in breach
2. Upheld
We considered that the claims “Tried and Tested Our Hybrid® mattress was developed with The Sleep To Live Institute who've profiled over 10m people” in ad (a) and “We tested our mattresses through extensive research together with The Sleep To Live Institute, involving more than 10 million people” in ad (b), would be interpreted to mean that Simba Sleep had created the mattress in active collaboration with The Sleep to Live Institute and, in the case of ad (b), that it had been tested on 10 million participants.
However, we understood that for a fee, The Sleep To Live Institute had agreed for Simba Sleep to use their testing methodology to determine the body types the mattress was best suited for, rather than having any input into its production. Furthermore, we understood that the mattress was not tested on actual participants, but rather it had been put through a diagnostic system that identified a product’s suitability for particular body types, based on data covering 10,157,475 body profiles.
We therefore considered that Simba Sleep had not provided adequate evidence to support the claims “Tried and Tested Our Hybrid® mattress was developed with The Sleep To Live Institute who've profiled over 10m people” in ad (a) and “We tested our mattresses through extensive research together with The Sleep To Live Institute, involving more than 10 million people” in ad (b). We concluded that they had not been substantiated and were misleading.
On this point the ad breached CAP Code (Edition 12) rules 3.1 3.1 Marketing communications must not materially mislead or be likely to do so. (Misleading advertising) and 3.7 3.7 Before distributing or submitting a marketing communication for publication, marketers must hold documentary evidence to prove claims that consumers are likely to regard as objective and that are capable of objective substantiation. The ASA may regard claims as misleading in the absence of adequate substantiation. (Substantiation)
Action
The ad must not appear again in its current form. We told Simba Sleep Ltd that their future marketing claims regarding who they developed their products with and the number of people they had been tested on must be supported with robust documentary evidence.
