Ad description
An unsolicited direct mailing for trademark renewal facilitator was headed "Reminder" and featured the company name "Intellectual Property Agency Ltd" and corresponding logo. The ad included a form that included text which stated "Your trademark is about to expire expiry date: 18/12/2014 Your trademark registration is valid for ten (10) years and may subsequently be renewed for ten years at a time. Sign and return this document in order to renew your trademark". The ad provided details of how to renew a trademark (along with the inherent risks of not renewing it) and provided details of the costs.
Issue
Two complainants challenged whether the mailing was misleading because it did not make clear that it was a marketing communication.
Response
A Swedish law firm responded on behalf of their client Intellectual Property Agency Ltd. They said that when a trademark was about to expire, their client sent out a reminder and offered its renewal services to customers worldwide. They said the reminder document informed the recipient that the document return was optional and that it merely acted as a reminder and believed it was clear that the direct mailing was not a bill or an invoice and that the recipient could contact their own representative in order to assist the renewal process. They added that their client’s mailing included text to state that by signing the document, the recipient automatically and irrevocably complied with the terms and conditions referred to on the reverse of the document.
They believed their client's reminder document explicitly underlined that Intellectual Property Agency Ltd was a private company that reminded trademark holders when their trademarks were due for renewal. They believed that the mailing was not misleading and stated the company had been operating since 2009 and had entered into renewal agreements with many hundreds of satisfied customers who had not complained.
Assessment
Upheld
The ASA considered the mailing made clear that its purpose was to remind trademark holders that their trademark was due for renewal and that by signing and returning the document they were agreeing that Intellectual Property Agency Ltd would carry out that renewal process. Terms and conditions on the reverse of the document also stated that it acted as a reminder of the need for renewal and that recipients could renew their trademark through their own representative. We further noted those terms and conditions included a statement that Intellectual Property Agency was a private company who would carry out the work to renew a trademark and provided details of its address in the Seychelles.
However, we considered that the prominent use of the word "Reminder" and "Order" on the front of the document alongside the text "Your trademark is valid for ten (10) years and may subsequently be renewed for ten years at a time. Sign and return this document in order to renew your trademark" and the layout of the form, implied that there was an existing and on-going relationship between the recipient and the sender regarding their trademark registration and that this "reminder" was a follow-up document to previous correspondence relating to their trademark. We understood that no such previous relationship existed between the recipient and the advertiser and that the mailing was a solicitation to use the services of the company in order to renew a trademark registration. Furthermore, the use of "agency" in the company title alongside the domain extension "org" in the web address and the abbreviation of the company name to "IPA" throughout the document may have resulted in recipients who were unfamiliar with the trademark renewal process from assuming that the mailing was from an agency associated with the Intellectual Property Office (IPO), whose responsibility it was to register and renew trademarks. We understood however that no relationship existed between the IPO and the advertiser.
We therefore considered that the ad did not make clear that it was a marketing communication and concluded that the ad was misleading.
The ad breached CAP Code (Edition 12) rules
2.1
2.1
Marketing communications must be obviously identifiable as such.
(Recognition of marketing communications),
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).
Action
The ad should not appear again in its current form.
