Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
The website www.mazda-uk.co.uk stated at the top of every page "Mazda UK. We are a direct outlet for main dealer part exchanges, ex-lease and company vehicles". The name Mazda UK was flanked on either side by an image of wings reminiscent of those in the Mazda Motors UK Ltd logo.
Issue
Mazda Motors UK Ltd, a subsidiary of Mazda Motor Corporation of Japan, challenged whether the ad:
1. was misleading, because the claim "We are a direct outlet for main dealer part exchanges, ex-lease and company vehicles" implied a connection with Mazda Motors UK Ltd which did not exist; and
2. took unfair advantage of the reputation of their trademarked logo and trade name.
Response
1. Mazda UK Ltd (Mazda UK) stressed that they had never intended to mislead anyone, but said they nevertheless accepted that the claim "We are a direct outlet for main dealer part exchanges, ex-lease and company vehicles", in the context of the banner at the top of their website, might imply a connection with Mazda Motors UK Ltd (Mazda Motors). They said they were willing to remove the claim from the ad.
2. Mazda UK responded that their company name was registered with both Companies House and the Office of Fair Trading (OFT). They said they had chosen the name because they specialised in selling Mazda RX8s, a model which had now been discontinued and which was therefore not available from Mazda Motors. They disagreed that their logo was similar to that of Mazda Motors, but said they had nevertheless now removed it from their website and once they had used up existing stationery they would consider changing it in other media. They referenced the Mazda Motors Wikipedia page, which stated that the name "Mazda" was derived from that of a religious god, and said therefore that word was not, and could not be, exclusive to Mazda Motors.
Assessment
1. Upheld
The ASA understood that Mazda Motors believed that the claim "We are a direct outlet for main dealer part exchanges, ex-lease and company vehicles" implied a connection with their company which did not exist. They explained that their company policy was to resell ex-lease and company vehicles only through closed or cyber auctions via their franchised dealer network. Those cars were therefore not available to non-franchised Mazda dealers.
We noted that the claim appeared alongside Mazda UK's company name and their logo, both of which bore a close resemblance to those of Mazda Motors. In that context, we considered that the phrases "direct outlet" and "main dealer" would be likely to communicate to consumers that the company had an official connection with Mazda Motors, or were a franchised Mazda dealership which enabled them to sell part exchanges, ex-lease and company vehicles from that source. We understood from Mazda Motors that that was not the case, and Mazda UK did not provide any evidence to the contrary. We welcomed Mazda UK's apparent willingness to remove the claim, but noted that it continued to appear in a prominent position on a different part of the website.
Because we considered that the claim implied a connection with Mazda Motors, and because Mazda UK had not demonstrated any such connection, we concluded that the ad was misleading.
On that 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).
2. Upheld
The ASA understood that the logo and name "Mazda" were registered trademarks of Mazda Motor Corporation, and that they and Mazda Motors had a reputation in the UK, having been selling Mazda cars there for many years. We acknowledged that Mazda UK had registered their name with Companies House (in April 2012). We noted that Mazda UK's trading name and website URL (www.mazda-uk.co.uk) were very similar to those of Mazda Motors (www.mazda.co.uk). In addition, the logo used by Mazda UK was a pair of silver wings and we considered this bore a close resemblance to the Mazda Motor Corporation logo, which appeared to be a pair of silver wings enclosed in a circle. We welcomed Mazda UK's willingness to remove this logo from the ad. We noted that Mazda Motors offered a link on its own website, under the heading "used cars", to its authorised dealers, some of which were situated in Hampshire, Berkshire and Surrey, who sold used Mazda cars, including the Mazda RX8.
We considered that it was likely that consumers would understand from the URL, logo, trade name and text in the ad that Mazda UK was officially linked with Mazda Motors, for example as an authorised dealer. We noted that text in the ad under the heading "Welcome" stated "At Mazda UK, we are a specialist used car dealership based on the Hampshire, Berkshire, Surrey borders. We offer vehicles that are NOT to main dealer criteria (under 3 years old and under 30,000 miles) but, are of top quality and the best value in the south! ...". However, it went on to state "At Mazda UK we stock a range of used cars ..." and "At Mazda we don't just sell cars, we do everything possible to get you driving your perfect car", again emphasising an association with the Japanese-owned car company rather than the car. Mazda UK and Mazda Motors both operated in the automobile industry, and we considered that other material in the ad was not sufficient to counteract the impression that the two were linked.
We noted that Mazda UK were not using their full company name (Mazda UK Limited) in the ad, but in any event registration of a name of a limited company with the Registrar of Companies (or with the OFT for consumer credit licensing) did not give an unrestricted right to use the name in a manner likely to mislead or infringe the rights of others. Because we understood that there was no official connection between Mazda UK and Mazda Motors, we concluded that the ad took unfair advantage of the reputation of Mazda Motors' trademark name, trademark logo and trade name.
On that 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 3.43 3.43 Marketing communications must not take unfair advantage of the reputation of a competitor's trade mark, trade name or other distinguishing mark or of the designation of origin of a competing product. (Imitation and denigration).
Action
The ad must not appear again in its current form. We told Mazda UK not to imply that their company was officially connected with Mazda Motors if it was not, and not to use a trading name, logo or website URL in a manner that took unfair advantage of Mazda Motors' trademark name and trademark logo.
