Background

Summary of Council decision:

Two issues were investigated, of which one was Not upheld and one was Upheld.

Ad description

A website for driving theory and practical test booking services. The home page, www.bookingsdirect.org.uk, had a predominantly orange colour scheme and included five 'double reverse c' logos. Text on the home page stated "24/7 Cancellation Finder Service" and "We will add you to our Cancellation List and fit you in as soon as a date becomes available".

Issue

The Driving Standards Agency (DSA) challenged whether:

1. the colour scheme and logos used were misleading, because they implied an official service was being offered; and

2. "24/7 Cancellation Finder Service" was misleading, because the DSA's service for finding practical tests was not available between midnight and 6 am, therefore making it impossible to find a cancellation during that time.

Response

1. BookingsDirect.org.uk (BookingsDirect) stated that they were not aware of any similarity between their website and the former DSA website, but could not comment fully as the site was no longer live.

Once provided with an example archived page of the DSA's former website, BookingsDirect said the shade of colour they used was significantly different from the shade used on the former Direct.gov site, and that apart from the general similarity that both colours could be described as orange, the colours were demonstrably not the same.

BookingsDirect stated that the use of an orange-based colour on commercial sites was widespread, and they used the colour as it was a proven commercially attractive colour to potential customers, as evidenced by its use on the websites of major commercial companies such as EasyJet and Sainsburys.

BookingsDirect noted that the archived Direct.gov site carried the Direct.gov logo and a DSA logo. They said the options in the header for a Welsh version together with the text enlargement and site search facilities were common on government sites. They felt that by comparison, the BookingsDirect home page was obviously a commercial site. They said the colour scheme, logo, text font and the basic page design and layout were completely different from the Direct.gov site. They also pointed out that the 'Information' panel on their home page, stated "Booking Services is not affiliated or associated with the Driving Standards Agency. Our management fee includes our Pass Protect Guarantee and cancellation finder service which is open 24/7. A driving test booking service is provided by the DSA at a lower cost but this service does not include our cancellation finder and Pass Protect Guarantee. All payments are securely handled through GlobalPayments HSBC Bank PLC".

BookingsDirect said that even if their site did look similar to the old Direct.gov site, users accessing it would have no way of knowing of the similarity. They advised that users of their site were typically 17 years old and would have had no reason to have visited the old Direct.gov site in the past, and therefore no knowledge of how that site looked.

With regard to the new DSA site, BookingsDirect believed it had been designed to fit in with the rebranding that was common across all government sites, with little use of colour and with the former DSA logo replaced by a new one. They contended that this was the site that consumers would now see when booking a driving test directly with the DSA. They thought that if their site was believed to be likely to confuse consumers into thinking that it was an official site, then the comparison ought to be made between the BookingsDirect site and the current DSA site.

Finally, BookingsDirect explained that their site had been in use with the same colour scheme for over 18 months, and noted the DSA had not complained about it whilst their old site was still in use.

2. BookingsDirect claimed that the availability of the DSA service did not affect their ability to provide a 24/7 service to their customers. They said they did not guarantee being able to arrange a short-notice cancellation date as they did not control the DSA booking system. They explained that they had a database containing all the cancellation and booking requests they received, and they could match requests for cancellations within their own system and then implement the changes once the DSA system became available.

They said their system was monitored and updated 24 hours a day, 7 days a week, and any potential 'swaps' were immediately highlighted. Upon receipt of a cancellation request, they checked it against their cancellation list and general bookings list to identify potentially beneficial 'swaps' within their database. They then contacted the customers to arrange the swap, before booking and confirming it once the DSA service became available. They pointed out that their Terms and Conditions stated "Please note that the Company will search and attempt to book you the earliest possible test date but we cannot guarantee any specific dates as these are beyond our control".

Assessment

1. Not upheld

The ASA understood that the DSA had been contacted by customers who believed they had booked their test officially, but had in fact used the service provided by BookingsDirect. We noted that until 16 October 2012 the Direct.gov website, and the DSA website before it, used an orange and white colour scheme, and featured a logo that was made up of an orange and a blue crescent and the letters 'DSA'. The new government website www.gov.uk, which replaced the Direct.gov website, was launched on 17 October 2012. The colour scheme of the new website was black and white.

We considered whether the branding of BookingsDirect's website, with an orange and white colour scheme and a logo comprising two black crescents, would be likely to mislead users into thinking they were using an official site.

We acknowledged that some consumers would be familiar with the Direct.gov branding. However, we considered that the logos were not so similar as to be likely to cause confusion and the shades of orange used on the two websites were visibly different. We noted that the DSA logo and colour scheme were no longer in use by the DSA, and accepted BookingsDirect's point that the majority of users would be booking a driving test for the first time, and therefore could not reasonably be expected to remember or be aware of the old Direct.gov branding.

We agreed that the font, design and layout of the BookingsDirect website was different to that of the old Direct.gov website. We also noted the text on the BookingsDirect website stating that the service was not affiliated or associated with the DSA, and as it was displayed in a prominent text box at the middle of the home page, deemed it sufficiently clear to all users, including those booking for the first time, that it was not an official service. We also noted that the BookingsDirect website address ended with "org.uk", not "gov.uk", and considered that this also made clear that this was not an official Government website.

We concluded that the colour scheme and logos were unlikely to mislead users into understanding that it was the official DSA website.

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),  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  3.43 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), but did not find it in breach.

2. Upheld

We considered that the text next to the "24/7 Cancellation Finder Service" claim, which stated "We will add you to our Cancellation List and fit you in as soon as a date becomes available", implied that it might not be possible to officially book the test straight away. However, we also noted that Booking Direct's website did not state that the DSA service for finding practical tests was not available between midnight and 6 am, and it was not possible to book a cancellation during that time.

While we acknowledged that the database BookingsDirect used to find potential cancellations was monitored and updated 24 hours a day, 7 days a week, due to the fact that they could not act on a request or book a cancellation until the DSA system became available, meaning that tests could not be booked for six hours each day, we concluded that the claim "24/7 Cancellation Finder Service" was 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),  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  3.11 3.11 Marketing communications must not mislead consumers by exaggerating the capability or performance of a product.  (Exaggeration).

Action

The ad must not appear again in its current form. We told Bookings Direct not to claim they offered a 24/7 Cancellation Finder Service.

CAP Code (Edition 12)

3.1     3.11     3.43     3.7    


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