Background
Summary of Council decision:
Two issues were investigated, both of which were Upheld.
Ad description
A direct mailing for Worldwide Trademarks, received on 30 October 2023 in an envelope which included the Worldwide Trademarks logo and the text “All About Your Brand Worldwide Comprehensive Realtime Monitoring” in the left-hand corner. Further text on the right of the envelope stated, “If undelivered please return to: Budapest 1005 HUNGARY” followed by “P.P PRIORITARE MAYGAR POSTA BUDAPEST 1005 EPP2”. At the top left of the enclosed letter a box headed “Trademark Information” included a reference number, the “period covered”, the amount of £869.00, a trademark application number and date, and international trademark classes. An image of a specific trademark appeared underneath. Below a separating line, text stated “Payments to our account department”, followed by banking information which included “Mandat Consulting, k.s.” as the beneficiary. To the right, text stated “SERVICE UNTIL 2028” and the price of £869.00.
On the right of the page, under the text “TRADEMARK OWNER” was shown in white font in a grey box. Underneath, and justified to the right, the word “OFFER” appeared in small text, with body copy of the same size font underneath that stated “THE FOUNDATION OF OUR OFFER IS PUBLISHING YOUR TRADEMARK” followed by a description of the advertiser’s trademark monitoring service, which included tools to help detect potential conflicts and violations against a trademark. The paragraph concluded with the text “PLEASE NOTE THAT THIS SERVICE IS NOT RELATED TO THE PUBLICATION OF OFFICIAL REGISTRATION AND IS NOT A REGISTRATION BY A GOVERNMENTAL ORGANISATION”. Further text stated “THIS OFFER IS NOT AN INVOICE BUT A REQUEST WITHOUT OBLIGATION TO PAY, UNLESS OUR OFFER IS ACCEPTED. ALL OTHER DETAILS ARE INDICATED IN OUR GENERAL CONDITIONS AND GENERAL CONDITIONS OF SALE” with “IS NOT AN INVOICE” in bold text.
A box at the bottom of the page included the text “Introducing Weekly Updates on Trademark Similarities”. “General Terms and Conditions” were listed on the back of the page.
Issue
The complainant challenged whether the ad was:
1. obviously identifiable as a marketing communication; and
2. misleading, because it had the overall appearance of an invoice.
Response
1. & 2. Worldwide Trademarks SRO said it had not been their intention to mislead and that their direct mailings were meant to be informative and transparent. The ad was not intended to resemble an invoice and did not include any of the requirements of one, such as an invoice and tax number. They took great care to explicitly state that the letter was an “offer” multiple times, in a font consistent with the rest of the content. They also highlighted that “IS NOT AN INVOICE”, as part of the statement “THIS OFFER IS NOT AN INVOICE”, was printed in bold.
They explained that their clients were commercial customers, and that their services were designed to assist both existing trademark owners and new applicants in monitoring and protecting their intellectual property rights effectively. They said they prioritised customer satisfaction and had strict refund policies in place to address concerns clients may have.
Assessment
1. Upheld
The CAP Code required that marketing communications were obviously identifiable as such, meaning that recipients should be able to tell from the envelope itself that it was a marketing communication.
While the front of the envelope included corporate branding and an address in Budapest, the ASA considered that was not sufficient to ensure that the envelope was obviously identifiable as a marketing communication. For that reason, we concluded that the ad breached the Code.
On that point, the ad breached CAP Code (Edition 12) rules 2.1 and 2.3 (Recognition of marketing communications).
2. Upheld
As referenced above the CAP Code required that marketing communications must be obviously identifiable as such. Additionally, they must not materially mislead or be likely to do so, including by hiding material information or presenting it in an unclear or ambiguous manner.
We considered that the overall appearance of the letter inside the envelope resembled an invoice, because it included typical elements such as a header with company information, a reference number, the recipient’s information including their trademark details, a payment amount and payment instructions. Those elements were presented in a layout typically seen in an invoice, with Worldwide Trademarks’ logo in the header, the recipient’s information underneath, the payment amounts in a box within the body of the letter and the payment details at the bottom. While we acknowledged that small text on the right of the letter described the service provided by Worldwide Trademarks, including referring to it as an “offer”, and stated in bold font that the letter was “NOT AN INVOICE”, we considered that this was not sufficient to counteract the initial impression that the letter was an invoice rather than a marketing communication.
Because the ad was presented in a way that misleadingly resembled an invoice and was not obviously identifiable as a marketing communication, we concluded that it breached the Code.
On that point, the ad breached CAP Code (Edition 12) rules 2.1 and 2.3 (Recognition of marketing communications), 3.1 and 3.3 (Misleading advertising).
Action
The ad must not appear again in its current form. We told Worldwide Trademarks SRO to ensure future mailings were obviously identifiable as marketing communications and did not mislead, including by ensuring that envelopes made clear that they contained a marketing communication, and not presenting ads in such a way that they could be understood to be an invoice.
