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Good news / BAD news – July 2023

John Coldham, Jasmine Lalli and

Welcome to the sixth edition of the “Good News / BAD News” Blog!

Our BAD Team (that is, our Brands, Advertising and Designs Team) serves as trusted advisers to some of the most valuable brands in the world and we wanted to share our recent experiences in the hope of helping brand owners navigate the ever-changing landscape. 

We have summarised some of the things we think you should know about right now…

Copyright series

In our experience, many businesses are not that familiar with copyright law.  And yet, it’s a really valuable and important right, and it arises automatically in many cases.  Over the past few weeks, we have been publishing weekly articles covering different aspects of copyright law. 

Starting with the basics of copyright law, we have gone on to cover what to do if you’ve been accused of copyright infringement, copyright in advertising and things to know about copyright and software, to name a few. 

Details of each article can be found here:

SATURN

Drum roll please…we are incredibly excited about the launch of our fabulous new online brand protection service – Saturn! Shaped by our clients’ experiences over the years, as well as our own work running the brand protection programme for the Birmingham 2022 Commonwealth Games, we have developed a new approach to provide clients with more strategic and comprehensive online brand enforcement, all while keeping costs competitive.

Saturn helps brand owners identify, monitor, review and take action against possible infringements of their rights online. The annual subscription service offering works in combination with the expertise provided by our team to provide a holistic brand protection solution for clients across the globe, with unlimited takedowns included in the fixed monthly cost. 

Clients can choose the level of support they require from us – from a largely self-service model to a fully supported service.  All levels of service involve a degree of advice from our experts, and an annual audit that will allow clients to dig deeper into the findings to identify gaps in protection, particular platforms or geographical areas of concern, and collating strategic data on sellers.

The development of our Saturn service has been led by our very own John Coldham and Khemi Salhan in collaboration with a specialist technology company made up of a mix of experienced intellectual property professionals including patent attorneys, software entrepreneurs, administrators, and design and development whizzes!

Saturn will be fully launched this autumn – but if you are interested in learning more about Saturn or have any questions in the meantime, please do contact John Coldham or Khemi Salhan.

Lidl VS Tesco – The latest in supermarket wars

There has been a form of order judgment in the Lidl v Tesco case: Lidl Great Britain Limited & Anr v Tesco Stores Limited & Anr [2023] EWHC 1517 (Ch) (21 June 2023) Joanna Smith J.  This follows the first instance finding in the case that Tesco’s signage amounted to trademark infringement, passing off and copyright infringement – you can find full details of the decision, and its implications in our recent article – Supermarket Wars – Why your brand protection strategy is crucial.

At the consequential hearing, Tesco conceded that, on the basis of trademark infringement and passing off, Lidl was entitled to final injunctive relief. However, the indication was that Tesco would appeal those findings. Lidl had agreed to a stay of any injunctive relief, pending Tesco’s application for permission to appeal or any appeal findings justifying that relief.

In the context of the form of order to be made now, Joanna Smith J had to consider whether, if Tesco succeeded in overturning the first instance findings of trademark infringement and passing off, so that only copyright infringement remained, injunctive relief should be granted, or whether damages in substitution for an injunction would be appropriate.

It was decided that damages in lieu of an injunction would not be appropriate in this instance. It was deemed that the injury to Lidl in this case was not small and one that could be adequately compensated by a relatively small money payment. On that basis, the only certain way to put an end to the loss that Lidl is incurring by Tesco’s continuing use of the Clubcard promotion signs is to grant a final injunction.

Tesco now has nine weeks from the end of final proceedings to comply with the injunction.

Brands and influencers facing tougher rules on marketing

Social media influencers are playing an increasingly prominent part in many brands’ marketing strategies, with estimations from the Influencer Marketing Hub that the global influencer marketing sector will turn over £17 billion this year (a year-on-year growth of 22%). However, the increase in uptake has been matched with a growing number of complaints from consumers concerned that influencer content is not identifiable as advertising.

In 2021, the Advertising Standards Authority (ASA) published its findings after monitoring the Instagram accounts of 122 UK-based influencers.  The ASA reviewed more than 24,000 Instagram Stories, posts, IGTV and reels to assess whether the rules on ad disclosure were being followed (e.g. the use of #Ad).  Compliance rates were far below what the ASA expected.  The ASA categorised nearly one in four stories as marketing, but only 35% of those were labelled clearly and obviously identifiable as advertising – a situation described by the watchdog as being “unacceptable”.

As a result of this, the UK Competition and Markets Authority (CMA) has published further guidance to assist influencers (and brands) comply with labelling requirements. Further, social media platforms are now expected to tackle hidden advertising by providing users with tools to label content as advertising and report suspected hidden advertising.

The guidance for influencers reiterated that influencers must make it clear whenever they receive a payment for posting, and when they are posting on behalf a brand they own or work for. Payment includes any form of reward – including free or discounted goods. Under the previous rules, if a brand were to send an influencer a free gift with no ‘strings’ attached, then the content the influencer posted did not necessarily need to be labelled as an advertisement.  However, in a marked departure from the previous stance, it no longer matters whether or not the influencer has been asked to post or if the brand has editorial control over the content.  If the influencer has been incentivised to promote a brand or product – including where they have received a gift or invitation to an event – then any content they post should be labelled as an ad.

Since then, the CMA and Committee of Advertising Practice (CAP) have updated their joint guidance on the advertising disclosure obligations.  It is clear that influencer marketing remains firmly on the regulators’ radars and influencers and brands alike should ensure they adopt the most transparent approach possible when posting commercial content.

Kate Hawkins, from our advertising team, recently spoke to Raconteur to provide her key thoughts about this.

Girl grind pro bono

Kate Hawkins and Zoe Pearman recently hosted a workshop for women in the creative industry sponsored by Girl Grind UK CIC as part of their “She Don Did It” programme.

The programme is a six week incubator course designed to help attendees level up their career in the creative industry.  Kate and Zoe hosted an “Introduction to IP” session focused on how these young creatives can protect and exploit their IP rights.

Kate and Zoe really enjoyed the session – it was incredibly engaging with the attendees sharing their real life experiences which was beneficial to all.    

See a brief snippet from the day here.

Back to basics – Our series of IP podcasts

We have released some more podcasts as part of our “IP Basics” series which (as you may have guessed) address the basics of IP law.  The podcasts are intended to deliver the key basic details about various IP rights in an interesting and engaging way.

We have released a number of podcasts so far, including on the law of passing off, online brand infringement, and what you need to know about trademarks. We’ve also got new releases scheduled over the next few months.

If you are trying to get to grips with IP rights for the first time or want to refresh your knowledge on issues you aren’t regularly faced with, these podcasts are for you!  

Regulating green claims in the UK

Green claims have come under increasing scrutiny in the UK, since the introduction of the Green Claims Code in autumn 2021. Two recent decisions from the Advertising and Standards Authority (ASA) show just how difficult it can be to get green claims right.

The first relates to oil and gas energy giant, Shell. The ASA considered a poster seen in Bristol, a TV advert and a YouTube advert. The advertisements sought to raise awareness of, and demand for, Shell’s lower emissions energy products and services. The ASA investigated after a complaint was made by campaigning group, Adfree Cities. Despite the fact that Shell was able to substantiate the accuracy of the specific claims made in the ad copy and voiceover, the adverts were held to be misleading on the basis that they omitted material information that oil and gas made up the vast majority of Shell’s operations.

The second banned advert comes from Anglian Water. The decision related to a TV ad and a video on demand ad, which featured a girl saying “Anglian Water is creating wetlands to clean water using nature and make homes for wildlife”, before adding “Everything they do today is for tomorrow.” The video depicted various scenes of a wetland, fields, wildlife, tanks collecting rainwater, and a wind turbine. The ASA received complaints on the basis that the adverts were misleading, as they omitted significant information about Anglian Water’s history of releasing sewage into the environment. The complaints were upheld by the ASA, who found that the overall impression was that Anglian Water was making, and intended to make, a positive overall environmental contribution. However, due to the fact that Anglian water had previously been fined for carrying out activities that harmed the environment, it was held that the ads omitted material information and were therefore misleading.

The complaint rulings showcase how – when it comes to green claims – presenting the positives and ignoring the negatives (what marketing teams might think of as ‘marketing’!) may not be sufficient. The regulators are pushing for advertisers to present their environmental initiatives in the context of their operations as a whole, the good and the not so good.

For more information on any of the ASA’s recent rulings, or if you want guidance on your own advertisement campaigns, please reach out to Dan Smith, Kate Hawkins or Zoe Pearman.

Recognitions

We are absolutely thrilled to announce that our team recently won at the EMEA Managing IP, as we continue to act as respected legal advisers to household names across the globe. The Managing IP Awards programme recognises remarkable IP achievements and developments in the last year.

We were nominated for 11 awards including Global IP Firm of the Year and UK Trade Marks Firm of the Year.  We were the biggest UK winners on the night, with three awards including UK Design Firm of the Year (for the fifth consecutive year!) and UK IP Transactions & Advisory Firm of the Year – an amazing result for everyone involved!

In the news

Finally, find out what our team have got to say about some recent news stories … 

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