ASA begins project about the depiction of older people in advertising
The Advertising Standards Authority is currently examining how older individuals are portrayed in advertisements. It is considering to what extent, and how, certain depictions of older people in advertising can give rise to serious or widespread offence or harm. It is also considering if the ASA's current approach in this area offers adequate protection to prevent any such harms. Currently, the UK Advertising Codes contain rules which require advertisers to prepare ads with a sense of responsibility, and which prohibit ads from causing serious or widespread offence. This means that particular care must be taken to avoid causing offence on the grounds of protected characteristics, one of which is age. The ASA will publish the outcome of the review in 2025. It hopes that the review will provide evidence on which to consider any necessary next steps.
CAP and BCAP consult on amendments to advertising Codes
CAP and BCAP are consulting on proposed amendments to the UK advertising codes to align with the changes in the Digital Markets, Competition and Consumers Act 2024. The Act revoked and restated the Consumer Protection from Unfair Trading Regulations 2008. Most of the existing CAP and BCAP rules on misleading advertising derive from the 2008 Regulations or are compatible with them. The new rules are due to come into force in April 2025. The Act largely retains the legal framework around misleading advertising that was set out in the 2008 Regulations. However, they contain a range of amendments to wording, definition and structure, as well as the addition of several new categories to the Schedule of commercial practices that are in all circumstances considered unfair (prohibited practices). Most notably, there are new provisions on fake consumer reviews and drip-pricing. CAP and BCAP intend to produce more guidance on fake reviews in due course. The consultation ends on 5 February 2025.
CMA completes investigation into loyalty pricing in the groceries sector
The CMA has completed its investigation into loyalty pricing practices in the groceries sector. This inquiry aimed to determine whether loyalty schemes and pricing strategies are fair and transparent for consumers. It found that shoppers who are members of a loyalty scheme can almost always make a genuine saving on the usual price by buying loyalty priced products. This should give shoppers confidence that they are not being treated unfairly. Having analysed around 50,000 grocery products on a loyalty price promotion, the CMA found very little evidence of supermarkets inflating their "usual" prices to make loyalty promotions seem like a better deal. In addition, shoppers without a loyalty scheme membership are generally paying the same price during the loyalty price promotion as they do in the weeks both before and after loyalty price promotions. The CMA wrote to all supermarkets that use loyalty pricing to advise them to review their practices in line with CMA advice and, where necessary, take action to ensure that their promotions comply with consumer law, including when alternating between loyalty promotions and other forms of promotions such as was/now promotions. The CMA is also calling on supermarkets to consider if they could do more to make sure that certain shoppers – such as those without smartphones and under-18s – are able to join and make use of loyalty schemes. This concludes the CMA's review of supermarkets' loyalty pricing.
CMA starts dynamic pricing project
The CMA is also conducting a project on dynamic pricing, which involves adjusting prices based on consumer behaviour and market conditions. This practice is increasingly common in sectors such as travel and ticketing and came under the spotlight earlier this year when the Oasis concert tickets were being sold. Dynamic pricing is lawful in principle, but needs to be carried out carefully to avoid falling foul of consumer protection laws. The CMA's project aims to understand the implications of dynamic pricing for competition and consumers. It is separate from the CMA's investigation into Ticketmaster as a result of the Oasis ticket debacle.
ASA issues warning to weight-loss drug advertisers
The ASA has issued a warning to businesses and individuals who are targeting members of the public with ads for weight-loss prescription-only medicines. It has instructed them to remove their ads from online and social media. The ASA has been taking action on this issue since 2021 when it issued a joint Enforcement Notice with the Medicines and Healthcare products Regulatory Agency. However, it is aware through its monitoring that ads for these products continue to appear. Weight-loss drugs that are prescription-only medicines (POMs) should only be prescribed by a qualified medical professional. Reflecting this, the law and the codes prohibit them being advertised directly or indirectly to the public. The ASA says that this is an area where there is a clear and significant risk of harm from irresponsible ads. Concerns about weight-loss can have negative impacts, including on the body confidence of both men and women. The decision to use weight-loss POMs should only be undertaken after consultation with a medical professional and under appropriate medical supervision. None are approved for people who are not obese and, while most side effects for these medicines are mild, some may also be serious. Weight-loss POMs are not a cosmetic treatment to be used without serious consideration and advertisers should not be promoting them to the public. The ASA says that it will take strong action to tackle weight-loss POM ads targeted at people in the UK.
UK government publishes guidance published on restrictions on Less Healthy Food and Drink Advertising
From 1 October 2025, the UK government will be introducing restrictions on the advertising and promotion of less healthy food and drink products. The restrictions aim to reduce levels of obesity and promote healthier lifestyles. The Advertising (Less Healthy Food Definitions and Exemptions) Regulations 2024 (SI 2024/1266) implement the new TV and online restrictions on advertising products high in fat, salt or sugar. The government has also published guidance on the restrictions to help businesses prepare. It includes examples of products which do and do not fall within scope. The guidance also clarifies that the restrictions include products sold by retailers, manufacturers (if selling direct to consumers) and in the out of home sector. The guidance states that it should be read along the ASA guidance, as the ASA will be the frontline regulator for enforcement of the new restrictions (with Ofcom retaining statutory backstop powers). The ASA consulted on guidance relating to the new advertising restrictions last December, and we await the final version.
Online Advertising Taskforce issues update
The Online Advertising Taskforce was set up to bring together government and the advertising sector to work in collaboration to address illegal harms and the protection of children in relation to online advertising. It has recently published a progress report, which says that during its first year it has provided a valuable forum to help raise standards, promote initiatives and best practice and share research and evidence about online harms that affect the online advertising sector. Thes report provides an overview of the Taskforce and its progress to date, focusing on the work of six industry-led working groups and their planned next steps.
ASA publishes report on online supply pathway of age-restricted ads
The ASA has published a report about the online supply pathway of ads for alcohol, gambling and other age-restricted ads. Given concerns about children's exposure to these ads in media popular with them, the ASA's five year strategy commits to protecting children and other vulnerable audiences and bringing greater transparency and broader accountability to this and other areas of its online advertising regulation. The report presents a generally positive picture of how the industry is working to limit children's exposure to age-restricted ads in these and other online environments. Although breaches of the advertising code are few, it remains important to examine the circumstances that lead to ads being mistargeted to sites disproportionately popular with children. A key aim of the report is to inform debate about the effectiveness and the proportionality of the rules that currently restrict ads for alcohol, gambling, foods high in fat, salt or sugar and other age-restricted ads.
Copyright in Product Designs
Long-awaited judgment rules that WaterRower design is not protected in UK law as "work of artistic craftsmanship"
In the EU, case-law of the Court of Justice has in recent years offered encouragement to designers of some functional products ("works of applied art") that they can benefit from copyright protection. To do so, the designs must show sufficient originality (i.e. relevant individual creativity on the designer's part), but no specific "artistic" quality is required. Much of that EU case-law is also still binding in the UK post-Brexit (at least until a higher UK court or legislation rules otherwise). But in the UK there has always been a question mark over how the EU case-law could be reconciled with our domestic legislation and case-law which have traditionally only offered protection to "works of artistic craftsmanship", requiring both craftsmanship and an artistic quality to be demonstrated. This recent judgment of the Intellectual Property & Enterprise Court (IPEC) concluded that in fact the EU and UK positions cannot be reconciled, denying copyright protection in the UK to a design that it found would have been deemed original by the EU test.
The IPEC in this case had to evaluate whether the design for a piece of exercise equipment - a "WaterRower" rowing machine built of wood and using water-resistance rather than the more common fly-wheel design – was eligible for copyright protection in the UK. (A competitor had admitted copying the design, but its defence was that the rowing machine was not copyright-protected and thus there could be no infringement). The IPEC judge decided that there was enough individual creativity involved in the design for the WaterRower to qualify for copyright protection under the EU principles (set out in cases such as Cofemel and Brompton Bicycle). But having spent much time analysing the previous UK case-law on what can qualify as a "work of artistic craftsmanship" (which includes a House of Lords ruling that is very unclear in its reasoning), the judge decided that the WaterRower was not protectable in the UK. He confirmed that both craftsmanship and artistic creativity were required by the UK case-law, and while the designer in this case was deemed to have been a craftsman, his design was found to have been produced more for commercial than for artistic reasons.
Whereas works of applied art (even those produced in the UK) can still qualify for copyright protection in the EU if they are suitably original in design, this IPEC decision has thus confirmed that the position in the UK is much more uncertain. Ideally, the case will be appealed and we might hope for a Court of Appeal or Supreme Court ruling that provides binding guidance on UK protection in such circumstances; or possibly we might have to await legislative clarification of the position. In the meantime, as the IPEC is a lower court and made its ruling on particular facts, uncertainty will remain as to how the UK "works of artistic craftsmanship" definition should be interpreted and applied to other facts. For those looking to reproduce images of works of applied art (i.e. products with original design values, but potentially mass-produced) – for example in an advertising context – it may be advisable to remain cautious (i.e. consider carefully whether copyright clearance may be necessary in the UK), particularly as that is likely to be so across the EU in any case.
Read more here.
Trade Marks
UK Supreme Court issues major ruling on acceptable breadth of goods or services for which to register trade marks
After many years of varied rulings from the UK High Court, the EU Court of Justice and the UK Court of Appeal, the final word in the case of Sky v SkyKick has now been delivered by the UK Supreme Court. The ruling establishes that applying to register a trade mark in respect of types of goods or services that the applicant has no real intention of ever pursuing as part of its business can amount to a "bad faith" application. A finding of bad faith can in turn lead to the invalidity and cancellation of those elements of the registration that were over-broad, but the mark will survive in respect of those products or services for which the proprietor can demonstrate use or a reasonable likelihood of its business expanding into those fields at the time of registration.
The Supreme Court noted three types of specification of goods or services that might legitimately lead to an inference of bad faith. First, if there are long lists of goods or services that include some items that seem completely out of kilter with the applicant's business and the general thrust of the application (in this case, examples given were bleaching preparations, insulation materials, and whips). Secondly, there are some categories of goods or services that are just so broad that a registrant would never contemplate using its full range, and so a sub-set should usually be identified (examples given were "computer software" or "telecommunications services" in general). Thirdly, the specification of a whole Nice class of goods or services is likely to seem unrealistically broad. The way that the proprietor acts post-registration can also be relevant – for example, enforcing its trade mark against third parties in respect of a broader range of goods or services than it is using the mark for itself.
Brand-owners are advised to contact their trade mark advisers to consider the implications of the Supreme Court's judgment for their own portfolios and approach going forward. For existing registrations that arguably have over-broad classes of goods or services, there may be a vulnerability to a counter-claim for invalidity when it comes to enforcing the mark through the courts. This could have implications in terms of costs and reputational damage, although the most important elements of the mark should survive and be enforceable (i.e. it should be possible to show use or a reasonable likelihood of doing so for those elements). But likewise, if you are faced with a competitor looking to enforce against you a trade mark with over-broad specification of goods or services then you may be able to threaten a "bad faith" counter-claim for invalidity.
Read more here.
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