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.
Marketing communications must not mislead the consumer about who manufactures the product (Rule 3.41). Marketers whose marcoms resemble those of another company should make their identity clear to reduce the risk of misleading or confusing consumers. Placing the company name or logo in a prominent position or font could help consumers differentiate between the two companies’ ads (Vauxhall Motors Ltd, 15 December 2004). But that might not be enough if the rest of the marcom wrongly suggests that the company has taken over from the one it is imitating (Ribble Valley Promotions Ltd, 27 October 2004, and Setmasters Ltd, 1 March 2006).
When considering whether a marcom breaches Rule 3.41, CAP and the ASA will take account of the products being advertised. In 2005, the ASA rejected a complaint by a watch company about an ad for a new model of motor cars. Both companies chose to use the slogan “Beware of Expensive Imitations”. Because the advertiser sold cars and the complainant sold watches, the ASA considered that consumers were unlikely to be confused. In reaching that decision, the ASA noted the advertiser’s name was stated clearly and the creative style was materially different.
Marketers should bear in mind that consumers can become confused with ads they have seen at different times and in different contexts; often, when the two ads are seen side by side, they are different enough not to breach the Code.
Marketing communications must not present a product as an imitation or replica of a product with a protected trade mark or trade name (Rule 3.44). Marketers should seek legal advice if worried about a possible trademark or copyright legal infringement. See 'Legality'.
Lastly, marketing communications must not mislead the consumer about who manufactures the product (Rule 3.41).
Last modified : 05 August 2010