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 2022, furniture design company Oxford Planters challenged whether a listing on a website for London Planters misleadingly implied they had designed and produced an Oxford Planters product. The ad featured an image of the planter product and stated “We also specialize [sic] in bespoke metal planters. We can make steel planters of almost any size and color [sic]”. The ASA considered the ad was likely to give the impression that London Planters had manufactured the planters themselves, and because there was no qualification making clear that that this particular product had been manufactured by another company, it concluded that the ad was misleading. (London Planters, 20 July 2022).
Similarly, in 2021 the ASA upheld a complaint that an ad for a smart watch misleadingly suggested the product was an Apple Watch, when this was not the case. The ASA considered the shape and screen display of the watch in the ad were similar to that of an Apple Watch, and consumers would understand the ad to be referring to an Apple Watch that could be purchased from the advertiser. Because the watch was not an Apple Watch, the ASA concluded that the ad was misleading (UAB Commerce Core, 07 April 2021).
Brand names and Logos
Stating a brand or company name, or placing a logo, in a prominent position or font can help consumers recognise marketers accurately and differentiate between brands. Even when marketing communications do feature logos or company names, if they are not sufficiently prominent or the identity of the marketer is made ambiguous in the context of the ad, the ASA may consider this problematic.
In 2023 the ASA ruled against a paid-for search ad for eSky.co.uk because it misleadingly implied it was for Ryanair and that clicking on it would take consumers directly to Ryanair’s official website. The ad appeared under the search term “Ryanair”, and featured the heading “ryanair.esky.co.uk Ryanair – Cheap Flights Book airline tickets with …”, and the claim “Ad Ryanair – Cheap Flights”. The ASA noted “esky” was included as part of the featured URL, but it was preceded by the more recognisable “ryanair” brand name. The “eSky” name also appeared as a small logo in the ad’s top-left corner, but given it’s similar blue and white colour scheme to the Ryanair logo the ASA considered that it could easily be overlooked. Because the ad had not made clear the advertiser was a third-party travel agency clear upfront, and misleadingly implied it was Ryanair whose tickets it sold, the ad was found to breach rule 3.41. (eSky.pl SA, 6 September 2023).
Marketers should also take care to ensure that the use of another brand’s logo does not mislead viewers, or take unfair advantage of their trademark (Rule 3.43). In 2012, the ASA investigated an ad on a website featuring a link which presented the Epson logo, with the claim "Special Offers on all EPSON Cartridges". However, the link directed consumers to pages listing Epson-compatible printer cartridges that were manufactured by another company. The ASA upheld the complaint as it considered the presentation of the ad was likely to mislead consumers by suggesting the cartridges were manufactured by Epsom. It also ruled that the use of the Epson logo and pages relating purely to their products took unfair advantage of Epsom’s trademark (DVD-and-Media.com, 21 November 2012).
When considering whether a marketing communication complies with rule 3.41, the ASA will consider the nature of the products being advertised and the context of how they are presented. For example,e consumers may struggle more to differentiate between products or brands if they look similar or have similar uses. Marketers should bear in mind that consumers could also potentially become confused between ads they have seen at different times and in different contexts. However, if the two ads were seen side by side, they may be found to be different enough not to breach the Code.
Rule 3.44 also requires 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.
See also: ‘Imitation: Unfair advantage of trade marks and names’ and ‘Denigration’.