Ad description
A website offering energy price comparison services for businesses, www.uswitchforbusiness.com, included the title "Can I trust uSwitchforBusiness?" followed by "Yes - uSwitchforBusiness has saved money for tens of thousands of businesses, and we pride ourselves on delivering brilliant service to everyone we work with. We've helped businesses of all shapes and sizes, so we've got plenty of experience when it comes to comparing the market and understanding how to find the best prices on offer".
Issue
Business Juice Ltd, who had previously operated as uSwitch for Business and had provided the service, challenged whether the claims "uSwitchforBusiness has saved money for tens of thousands of businesses" and "We've helped businesses of all shapes and sizes, so we've got plenty of experience when it comes to comparing the market and understanding how to find the best prices on offer" were misleading and could be substantiated.
Response
uSwitch Ltd said that the challenged claims related to the number of businesses helped by uSwitchforBusiness Ltd and demonstrated that it was an experienced provider of energy price-comparison services.
They provided a history of the uSwitchforBusiness brand and said in 2007, uSwitch created the uSwitchforBusiness brand and that a company called Make it Cheaper was contracted to provide the outsourced fulfilment solution. They explained that in 2009, uSwitch (and therefore also the uSwitchforBusiness brand) was purchased by Forward Internet Group but that uSwitchforBusiness continued as a sub-brand operating within uSwitch Ltd.
They explained that from 2007 to January 2011, when the brand was operated by uSwitch Ltd and fulfilled by Make it Cheaper, they had helped 30,025 customers switch supplier. They said that at the heart of brand/trade mark law, was an understanding that goodwill and reputation accrued as a consequence of trading history, regardless of which legal entity (or company) that traded under the brand at a given time. They believed therefore that work carried out would accrue to a trademark and that the change in licensee did not impact on a brand's goodwill. They believed the trademark owner could therefore be said to "own" the trading history. They believed this was supported by the fact the business customer would have interacted with the brand and not the operating entity.
They added that when Business Juice was bought by its current directors, uSwitch Ltd had given notice to terminate the licensing agreement for the use of the uSwitchforBusiness trading name. They said the sale gave Business Juice the option to re-establish a relationship with the historic customers who transacted under the uSwitchforBusiness brand and that the terms of the sale stated that Business Juice had to inform the historic customers who had transacted under the uSwitchforBusiness brand that they were going to be serviced by Business Juice, going forward. They believed this further reinforced the fact that, prior to the sale to Business Juice, the customers and trading history belonged to uSwitch (the holders of the uSwitchforBusiness brand).
They believed that even if it were the operating entity against which the claims were attributed, the claims were still accurate. Whilst they accepted that customers who had been serviced by Business Juice during its tenure as licensee of the uSwitchforBusiness brand could not be claimed by uSwitch, they believed that the referenced work for the business customers that had been carried out under uSwitch Ltd, using the uSwitchforBusiness brand, were attributable to uSwitch and that during this time they had helped over 30,000 business customers.
Assessment
Not upheld
The ASA noted the complainant believed that, throughout its history, uSwitchforBusiness had always been under the control of, operated by and in the possession of the company now trading as Business Juice. Whilst we understood that 'uSwitchforBusiness' was a brand that had operated under several entities and that those involved in the day-to-day operation of the brand were those individuals who went on to create Business Juice (the complainant), we equally understood that, from 2007 (when the brand was created) through to January 2011, it had been operated under uSwitch (or a sub-brand of uSwitch) using third-party fulfilment.
We understood that the operation of uSwitchforBusiness became independent in January 2011 when it became a separate business entity using the brand name under licence from uSwitch and that the newly formed uSwitch for Business Ltd later became Business Juice, the complainant. We further understood that uSwitch for Business Ltd (later Business Juice) had operated the brand from 2011 onwards and had opted to inherit all of the customers that had been obtained under the 'uSwitchforBusiness' brand . We therefore considered that the work which had been carried out after that date could not be attributed to uSwitch.
However, prior to 2011, (regardless of under which company the sub-brand work was carried out under), we considered the claims in the ad "uSwitchforBusiness has saved money for tens of thousands of businesses" and "We've helped businesses of all shapes and sizes, so we've got plenty of experience when it comes to comparing the market and understanding how to find the best prices on offer" related to the experience of advising and saving money for businesses (as opposed to a claim about an existing customer base). We considered that because, from 2007 to 2011, the brand (under uSwitch), had helped over 30,000 customers switch energy supplier, the claims in the ad were accurate and therefore concluded that the ad was not misleading.
We investigated the ad under CAP Code (Edition 12) rules 31,
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),
3.7
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) and
3.9
3.9
Marketing communications must state significant limitations and qualifications. Qualifications may clarify but must not contradict the claims that they qualify.
(Qualifications), but did not find it in breach.
Action
No further action required.
