1. Trang chủ
  2. » Kinh Doanh - Tiếp Thị

Ad law the essential guide to advertising law and regulation

417 62 0

Đang tải... (xem toàn văn)

Tài liệu hạn chế xem trước, để xem đầy đủ mời bạn chọn Tải xuống

THÔNG TIN TÀI LIỆU

Thông tin cơ bản

Định dạng
Số trang 417
Dung lượng 5,2 MB

Nội dung

www.ebook3000.com i Ad Law ii THIS PAGE IS INTENTIONALLY LEFT BLANK www.ebook3000.com iii Ad Law The essential guide to advertising law and regulation Edited by Richard Lindsay iv An IPA book Institute of Practitioners in Advertising London office Regional offices 44 Belgrave Square Arms Evertyne House Catchpell House London Quay Road Carpet Lane SW1X 8QS Dun Cow Quay Edinburgh Blyth EH6 6SS Northumberland NE24 2AS www.ipa.co.uk First published in Great Britain in 2016 by Kogan Page Limited 2nd Floor, 45 Gee Street 1518 Walnut Street, Suite 1100 London Philadelphia PA 19102 EC1V 3RS USA United Kingdom 4737/23 Ansari Road Daryaganj New Delhi 110002 India All rights reserved No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording or any information storage or retrieval system, without the prior written permission of the publisher While every effort has been made to ensure that the information contained in this book is accurate at the time of writing, it does not constitute legal advice and should not be taken as such Neither the IPA, publisher, authors nor editor can accept any responsibility for any errors or omissions, loss or damage occasioned to any person acting, or refraining from action, as a result of the material in this publication The term ‘Ad Law’ is used with the kind permission of Swan Turton, LLP, the UK member of Adlaw International and the proprietor of the ‘Adlaw’ UK registered trade mark © IPA Institute of Advertising Practitioners, London, 2004, 2008, 2016 The right of the Institute of Advertising Practitioners to be identified as the author of this work has been asserted by it in accordance with the Copyright, Designs and Patents Act 1988 ISBN 978 7494 7289 E-ISBN 978 7494 7290 British Library Cataloguing-in-Publication Data A CIP record for this book is available from the British Library Typeset by Graphicraft Limited, Hong Kong Print production managed by Jellyfish Printed and bound by CPI Group (UK) Ltd, Croydon CR0 4YY www.ebook3000.com v Co n t e n t s List of contributors xv Editor’s note xxiv Richard Lindsay Foreword xxv Rt Hon Lord Smith of Finsbury Preface xxvi Paul Bainsfair, IPA Director General Pa r t O n e   Intellectual property: The law and content rights 1 01 Copyright 3 Michael Gardner Introduction 3 What is copyright? 3 What types of copyright work are there? 4 Literary, artistic, dramatic and musical works 5 Sound recordings, films and broadcasts 6 Typographical arrangements 7 Moral rights and performers’ rights 7 Overlap of copyright works 8 Duration of copyright 8 Ownership of copyright 9 Copyright infringement 10 Defences to copyright infringement 14 Copyright and comparative advertising 17 Consequences of copyright infringement 17 Summary 18 vi Contents 02 Trade marks 20 Michael Gardner Introduction 20 What are the relevant registration systems in the UK? 21 How does the system of trade mark registration work? 22 What can be registered as a trade mark? 22 How does the registration procedure work? 23 How long does a registration last? 23 Can a trade mark be challenged once registered? 23 Can trade marks be traded or licensed? 24 What does a registered trade mark protect against? 24 Typical infringement scenarios 25 Defences 28 Comparative advertising 29 Parallel imports 29 Trade marks and legal proceedings 30 Summary 30 03 Design rights 33 Michael Gardner Introduction 33 Community designs 34 UK registered designs 38 UK unregistered designs 39 Groundless threats 40 Designs and comparative advertising 41 Summary 41 04 Passing off 44 Michael Gardner Introduction 44 How does the law of passing off work? 45 What are the consequences of passing off?11 51 Summary 53 www.ebook3000.com Contents Pa r t T w o   The regulatory system: Key legal and self-regulatory frameworks 55 05 The self-regulatory system 57 Rupert Earle Introduction 57 Why self/co-regulation? 57 Non-broadcast structure: CAP/ASA 58 Broadcast structure: BCAP and ASAB 60 Remit: what the advertising codes cover? 62 Complaints 64 Code rules and how the ASA adjudicates 65 Code compliance 84 Complaints 85 Contesting an ASA decision 88 06 Consumer protection 93 Rupert Earle Introduction 93 Unfair commercial practices 94 Enforcement 99 Consumers’ right to redress 100 Consumer rights 100 Competition law 102 Fraud 103 07 Privacy and data protection 106 John Wilks and Loretta Marshall Introduction 106 Applicable legislation and codes 108 Direct marketing communications 108 Use of databases for marketing purposes 116 The use of cookies for advertising or marketing purposes 118 Online behavioural advertising 119 Summary 120 vii viii Contents Pa r t T h r e e   Do I comply? Key challenges and themes in advertising 121 08 Celebrities in advertising 123 India Forsyth and Richard Lindsay Introduction 123 What is a celebrity? 124 Do you know who I am? 125 Intellectual property 125 Self-regulatory codes 129 Defamation 131 Privacy and data protection 132 Contractual obligations 132 Conclusion 133 09 Advertising and children 135 Nick Johnson Introduction 135 What counts as a ‘child’? 135 Rules to protect children 136 Restricted products 139 Scheduling restrictions and age-based targeting 142 Child performers and licensing 144 Summary 148 10 Comparative advertising 150 Rafi Azim-Khan Introduction 150 Examples of comparative advertising rules: past and present 151 What regulates comparative advertising? 152 Applicable law and regulation 153 Statutory and self-regulatory codes and bodies 162 Penalties/sanctions 162 Options for the aggrieved 163 Summary 164 www.ebook3000.com Contents 11 Defamation and malicious falsehood 166 Nick Walker and Jonathan Coad Introduction 166 Clearing copy: assessing the risk 166 What is defamation? 168 Malicious falsehood 176 Some litigation tips 178 12 The internet and beyond 180 Brinsley Dresden Introduction 180 Who regulates advertising on the internet? 181 Search-based advertising issues 184 Content clearance, UGC and customer reviews 186 Transparency and native advertising 188 Blogs and review sites 191 Vlogging 193 Social media 196 13 Lotteries and prize promotions  202 Charles Swan Introduction 202 Lotteries and prize draws 203 Prize competitions 210 Prize promotions and the CAP Code 214 Northern Ireland 214 Summary 215 14 Music in advertising 218 Scott McKinlay Introduction 218 Types of copyright 218 Traditional approach 220 Other legal considerations 223 Alternative methods 224 ix 376 Business affairs agency is liable to the production company in respect of its contractual obligations as principal, rather than as an agent for the advertiser The production or commercials contract Paradoxically, the contracting process is best explained by taking Part of the contract first and then running through the contents of Part 1, the PIBS Part 2: the contract This chapter will consider the most important clauses only Responsibilities (Clause 1) This defines the commercials to be made by reference to the PIBS, the script and the cost estimate in order that the production company is clear about what film it is making and the agency is clear about what film it is getting The production company will also produce a treatment for the script – an explanation of how it will bring it to life on the screen This is not a contractual document but it assists in ensuring the parties share a vision of how the commercial will look Payment (Clause 5) Production companies and agencies agree a fixed price for the production and contract in advance of the commercial being produced – and that sum is written into the contract It shows the production company’s fee, referred to as the mark-up, which is a percentage of the costs of the production The production company is then responsible for producing the commercial for that fixed price; it cannot invoice the agency for extra costs it incurs because, for example, an unforeseen problem arises The contract provides exceptions; if the agency requires the production company to additional work, for example by changing the script, or the agency defaults on its obligations, for example in providing actors, and such results in additional costs Half the budget is payable no later than seven days before the shoot and the balance after the shoot as set out in the contract The position is different for ‘fast track’ productions (those defined as commercials which are to be completed within 21 days of the contract being signed), where 75 per cent of the budget is payable no later than seven days before the shoot www.ebook3000.com Production of Commercials Copyright and other rights (Clause 12) It is essential that the agency ensures it obtains all the necessary rights needed to comply with its obligations to the client Thus, provided the agency pays for the commercial, this agreement provides for the assignment of copyright in the commercial by the production company to the agency Thus the agency can use the commercial and any image from it in any media, anywhere in the world However, there is an important exception for animation; the agency may use the commercial (or clips from it in any audiovisual media, anywhere in the world), but copyright in the animation remains with the production company Thus if the agency wants to use a still from it, for example in some other advertising or in merchandising, it may only so if it agrees a fee for such use with the production company It is very important a client understands the restrictions that will always exist with using commercials indefinitely, whether because of animation rights, or artists’ and models’ performance rights The PIBS provides a shopping list for agencies so that they have the option of agreeing the price for a particular use of animation at the outset They can agree that such fee is payable on first use The clause also provides that agencies and production companies are responsible for obtaining copyright clearance on third-party material they include in the commercial Postponement or cancellation at agency’s request (Clauses 13 and 14) The agency may postpone production but must pay the production company the extra costs of making the commercial that result Similarly, the agency may cancel the production of the commercial but it will then be obliged to pay the production company the costs it has incurred, plus producer’s and director’s fees and mark-up, in sums to be agreed Insurance (Clauses 16–18) The insurance clause is very important It may be that this clause needs amending if the client wishes to insure The usual clause, however, provides that the agency indemnifies the production company and insures itself against specified items and vice versa If weather is unsuitable for filming a commercial on a planned shoot day and the shoot day has to be extended or another shoot day is required as a result, the extra day is referred to as a ‘weather day’ The client is responsible for that additional cost In contractual terms, the agency is responsible for 377 378 Business affairs paying that cost to the production company and the agency is entitled to recover that cost from the client Weather day insurance is available The premium will depend upon the type of weather to be insured against, that is, the definition of ‘unsuitable’ weather in respect of the commercial being shot and the likelihood of that weather occurring at that location at that time However, weather insurance premiums are typically 30–40 per cent of the cost of a weather day, so it is not unusual for clients to opt not to buy cover and take the risk of having to pay for a weather day themselves The production company is responsible for the additional cost of sets built outside prior to the commencement of the shoot if the agency asks and pays for the production company to insure against that The production company is also responsible for additional costs as a result of it not being able to reach the location because of adverse weather Disputes procedure (Clause 23) Under this contract, the agency and the production company agree that any dispute will be dealt with by mediation or arbitration, rather than going to court The aim of this is for industry disputes to be determined by representatives of the industry who have a good understanding of it Further, in most circumstances, mediation provides a quicker, cheaper and more flexible method of determining disputes This issue is dealt with in a little more detail below Part 1: the Production and Insurance Briefing Specification (PIBS) Moving on to consider the first part of the agreement, the PIBS records the details particular to the commercial being shot as part of the agreement between the agency and production company; it is as much part of the contract between them as Part – the contract The PIBS is set out in such a way as to operate as a checklist to assist the parties in ensuring that every element of production of the commercial is attributed as a responsibility to either the agency or the production company The PIBS deals with the following Section A This contains spaces to insert information as to duration of the commercial, formats required and critical dates www.ebook3000.com Production of Commercials Section B: insurance The purpose of this clause is to ensure that all the different types of insurance that might be required are considered, and, if they are appropriate to the production, that it is made clear which elements the production company and the agency are responsible for, because the production insurance contains many elements and is best obtained from a specialist broker The section details the different areas that need to be insured: ●● non-appearance insurance; ●● employer’s liability insurance and worker’s compensation; ●● commercial producers’ indemnity insurance; ●● personal accident insurance; ●● negative insurance; ●● vehicle insurance; ●● all-risks loss or damage to agency props and wardrobe; ●● weather insurance; ●● special requirements insurance; ●● evidence of insurance in effect Section C: time-critical information This clause provides an opportunity for the agency to identify whether the shoot could be postponed because of force majeure (rather than being cancelled) Section D: animation See Clause 12 of Part (above) in respect of animation copyright Section E: agency approvals Agencies should use this section to identify those elements of the production where the agency specifically requires approval before the production company proceeds Section F: currency/exchange rate fluctuations This clause sets out the procedures for commercials being shot outside the UK The method adopted is for the production company to identify what part of the quote they must pay out in foreign currency and what exchange 379 380 Business affairs rate was used The production company fixes the exchange rate on the day the production is confirmed by forward buying the currency The price agreed is varied to reflect the actual cost to the production company of forward buying the currency and that adjusted figure is inserted in Clause of Part Section G: checklist This section is a checklist of other items that may be required as part of producing the commercial, with the opportunity to say that they are inapplic­ able, or the responsibility of the agency or of the production company Section H: additional contractual requirements Any additional terms specific to each case can be inserted in this section Section I: payments It is important to set out clearly in this section when the price, agreed in Clause of Part 2, is due to be paid For overseas shoots, and other shoots that are front-end cost heavy, it is appropriate for the parties to consider accelerating payment of the second 50 per cent For example, the parties could agree that half of the second 50 per cent (ie 25 per cent of the total fee) will be paid immediately following the last shoot day Section J: showreels The agency commits to endeavour to get licences in favour of the production company to use the commercials to promote itself, in the same terms as the agency gets such rights for itself Section K This section provides that the agency should issue the contract – part to the production company by the day following verbal/written confirmation Disputes Fortunately, disputes in commercials production are comparatively rare – but when they crop up – even with the procedures outlined in the contract – they are time consuming and emotionally draining www.ebook3000.com Production of Commercials As such, invoking the formal dispute procedure is a step only usually taken as an ‘action of last resort’, when informal discussions have broken down and neither side can see a way forward The rationale of an industry disputes procedure Given that the sums involved in production disputes are comparatively small in commercial law terms, it is clearly desirable to avoid recourse to the courts In these circumstances, the procedure outlined in Clause 23 of the contract was designed to provide a totally confidential, fair and rapid means of resolving disagreements In the first instance, however, the IPA and APA will, if asked, investigate whether an informal intervention from them can help resolve the problem, and recent experience has shown this to be an effective means of resolving some potential disputes, by tackling the issue before the parties’ positions become ingrained Recognizing the need for administrative expertise in the actual process of mediation and arbitration, it was agreed to place the process of the arrangement into the hands of professional mediators/arbitrators, who would work alongside knowledgeable representatives of the industry to determine a fair and reasonable outcome To this end, the Centre for Disputes Resolution (CEDR) has been appointed to carry out this role Mediation In mediation, the parties are invited to work towards a mutually agreeable solution via a professional mediator The respondent may decline to participate in mediation and proceed directly to arbitration, but a resolution achieved via this process can benefit the parties by reducing administration costs and avoiding the potentially damaging effects on commercial relationships by allocating blame It is a confidential process, unlike court proceedings However, should this route prove unfruitful, or if the respondent requires it, a dispute can move to formal arbitration Arbitration Arbitration is more similar to court proceedings The parties in the standard contract agree to CEDR appointing an arbitrator, who in turn administers 381 382 Business affairs the procedure to a strict timetable Evidence of claims and defences are exchanged between the parties and they put their case at a hearing before a tribunal made up of a panel of mutually acceptable representatives from the film production industry, advertising agencies and advertisers (one per sector) under the chairmanship of the CEDR arbitrator Conclusion As will be gathered from all the above, making a television commercial is a highly complex procedure, frequently conducted under considerable pressure The Production Contract (Parts and 2) acts as a bedrock on which the British advertising industry creates some of the most outstanding and effective television commercials made anywhere in the world By providing clarity and certainty in an environment driven by creativity, the contract’s value to all parties is immense www.ebook3000.com 383 Index Italics indicate a table or figure Advertising Producers Association (APA)  375, 381 Advertising Standards Authority (ASA)  57, 58, 59, 60, 99, 143, 229, 277, 278, 287, 153, 162, 164, 188, 191, 197–98 adjudication  65–85, 193 Codes rules and  65–85, 162 comparative advertising  69–71 complaints to  64–65, 85–87, 136, 183, 302, 319, 345–46, 351 contesting a decision  88–89 digital remit  181–83, 184, 183, 187, 190 e-cigarette advertising  351–52 enforcement of decisions  59–60 financial services  84 food  303, 310 gambling  321–22, 324 harm and offence  72–75 misleading advertising  66–69 nutrition claims  303 sponsorship 251 tobacco  345–46, 347 Advertising Standards Authority (Broadcast) (ASAB)  61–62, 66 enforcement of decisions  62 agency/production company contracts  374–82 disputes 380–82 production of  376–80 purpose 375–76 alcohol 283–96 broadcast advertising  291–92 Code provisions  284–85 content 288 irresponsible/immoderate drinking  285–86 minors and  290–92 sales promotions  290 Scotland 292–93 seduction/sexual success  287 social success  287 therapeutic qualities  287–88 unsafe/daring activities  289 ambush marketing  249–50 Animal Defenders International (ADi)  334–35 badges 258–59 Bank of England  260 banknotes 259–61 Barclays Bank v RBS Atlanta 154 Betting, Gaming, Lotteries and Amusements (Northern Ireland) Order 1985  214–15 ‘Big Data’  116–17 British Airways v Ryanair  154, 160, 164 Broadcast Advertising Standards Board of Finance (BASBOF)  61 Broadcast Committee of Advertising Practice (BCAP)  57, 60 Code of Broadcast Advertising  60, 61, 62, 66, 129, 162 age-based targeting  143–44 alcohol  81–82, 283, 284–85, 292, 293 cars (motor vehicles)  265 children  82–83, 135–36, 141, 142–44 crowds/passers-by 267–68 endorsements 129 fictitious testimonials  270 food/drink  79, 301–05, 308–09, 311, 313 environmental claims  76–80 gambling  81–82, 320–21, 324 medicinal products and health  79–81 misleading by action or omission  67–69 political advertising  330 price claims and indications (PCIs)  229, 231–32 privacy  83, 130 prize draws  67 scheduling restrictions  142–43 separation of advertising and editorial  67 social responsibility  75 sponsorship 252 tobacco and e-cigarettes  83–84, 344–45, 347–52 Broadcasting Acts (1990, 1996)  66, 341 buildings and sculptures  262–63 Business Protection from Misleading Regulations 2008 (BPRs)  153, 228 384 Index Cable & Wireless v British Telecommunications  154, 164 Carlill v Carbolic Smoke Ball Company (1892)  93, 94 cars (motor vehicles)  263–65 copyright 263–64 design rights  265 passing off  265 regulatory considerations  265 celebrities in advertising  123–34 alcohol advertising  291 contractual obligations  132–33 copyright 128 defamation 131 definition 124 intellectual property  125–29 moral rights  129 ‘passing off’  125–26 performance rights  128–29 privacy 130 self-regulatory codes  129–31 social media and  198–200 sponsorship 241 trade marks and  127–28 unauthorized use  125 Chegwin, Keith  131 children 135–49 alcohol advertising  140 definition  135–36, 144 electronic cigarettes  140 food  140–41, 309–12 ‘four-day rule’  144–45 gambling 140 licensing  144, 146–47 live premium-rate telephone services  141 medicines 141 performers 144–47 ‘pester power’  137, 311 product placement  139 restricted products  139–42 rules to protect  136–39 tobacco rolling papers/filters  141–42 weight loss/slimming  142 working hours  147, 148 Children and Young Persons Act 1963  144 Clearcast  61, 84, 291, 330, 331, 345 client/agency contracts  357–68 audit 367 exclusivity/non-compete agreements  360–62 intellectual property rights  365–66 limitation of liability  364–65 projects 360 remuneration/third party costs  362 retainers 359 suggested terms  358–59 third-party costs  362 TUPE of employees  367–68, 372–73 warranties 363–64 coat of arms  266 coins 266–67 Committee of Advertising Practice (CAP)  57, 162 UK Code of Advertising, Sales Promotion and Direct Marketing (‘CAP Code’)  58–59, 62–69, 129, 131, 162 alcohol  81–82, 283, 284–85, 293 buildings 262–63 cars (motor vehicles)  263–65 causes/ideas 336–37 children  81–83, 135–36, 141 crowds/passers-by 268 compliance with  84–85 electronic cigarettes  349–50 endorsements 129 environmental claims  76–80 fictitious testimonials  270 ‘free’ products  237–38 food/drink  79, 301–05, 308–09, 313 gambling  81–82, 320–21 internet advertising  182, 184, 188–91, 194–95 ‘lowest’ price claims  235–36  medicinal products and health  79–81 online behavioural advertising  119–20 political advertising 335–36 price claims and indications (PCIs)  229, 231–32, 234, 236 prize promotions and  214 privacy  83, 119, 130 reviews by bloggers  191 royal arms/emblems  277 sales promotions  84 savings claims  234 social media and  197–98 social responsibility  75 sponsorship 251 tobacco and e-cigarettes  83–84, 344 transparency  188–90, 199 vlogging 194 Communications Act 2003  59, 62, 328 s.28(1)(A) bar 29 Compaq v Dell  159 comparative advertising  150–65 CAD/BPRs checklist  161 codes and  162 copyright infringement  160 definition 150 examples of rules  151–52 options for the aggrieved  163–64 passing off  158 penalties/sanctions 162–63 www.ebook3000.com Index codes and  continued regulation 152–62 trade mark infringement  153–58 Competition Act  103 Competition and Markets Authority (CMA)  99, 100, 103, 153, 163, 183, 189, 237 online reviews and endorsements  192–93 competition law  102–03– complaints  64–65, 85–87 arguments against  86 competitor campaigns  87 Consumer Contracts (information, Cancellation and Additional Charges) Regulations 2013 (CCRs)  100–01, 102, 228, 229 consumer protection  93–105 aggressive practices  98 breach of requirement of professional diligence 98–99 enforcement 99–100 unfair commercial practices  94–99 Consumer Protection Act 1987  153 Consumer Protection (Amendment) Regulations 2014  163 Consumer Protection from Unfair Trading Regulations 2008 (CPRs)  94–96, 152, 183, 189, 192, 195, 228, 231 ‘average consumer’  97–98 breaching 99 ‘free’ products  237 food 297 misleadingness and children  136–37 price claims and indications (PCIs)  230 right to redress  100 ‘transactional decision’  98 consumer rights  100–02 Consumer Rights Act (CRA)  2015  101–02, 103, 228, 229 Consumer Rights (Payment Surcharges) Regulations (CSPRs) 2012 228, 229 Control of Misleading Advertising Regulations 2008 (BPRs)  153 checklist for comparative advertising 161 cookies 118–19 copy, clearing  166–68 copyright 3–11 artistic works  6, broadcasts  7, cars (motor vehicles)  263–64 celebrities and  128 client/agency contracts  365–66 comparative advertising and  17 definition 3–4 duration 8–9 dramatic works  6, ‘fair dealing’  14, 17 films  7, infringement  10–14, 160 literary works  5, moral rights  7, 13–14, 128, 223 musical works  6, 8, 218–20 ownership of  overlap of  parodies 15–17 performers’ rights  7, 14, 128 pitching 371–72 quotation 14–15 sound recordings  6–7, types 4–5 typographical arrangments  7, Copyright and Rights in Performances (‘Quotation and Parody’) Regulations 2014  14, 16 Copyright Designs & Patents Act 1988 (‘CDPA’)  4, 5, 7, 10, 11, 12, 39, 258–59 crowds/passers-by 267–68 data protection privacy and  106–120, 132 Data Protection Act 1998 (DPA)  106–07, 109, 132, 268 databases 116–17 sharing consumer  11 defamation 166–76 damages 176 defences 174–75 endorsements/testimonials 170–71 foreign claimants  176 free speech and  174–75 injunction 175–76 libel  169–70, 172 look-alikes 171–72 remedies 175–76 ‘repetition rule’  171 slander 169 sueing 172–74 Defamation Act 2013  168, 172 Department for Business, Innovation and Skills (BIS) Pricing Practices Guide (PPG)  229, 236 design rights  33–43 community designs  34–38 comparative advertising  41 groundless threats  40–41 infringement  38, 40 types of protection  33 UK registered  38–39, 41 UK unregistered  39–40, 41 385 386 Index designer clothes/jewellery  268–69 direct marketing communications  108–16 campaign medium  109 e-mail/text message  110–14 consent 109–10 summary 115–16 target audience  109 telephone 114 disclaimers 86 ‘distribution right’  11 ‘Dr Brown’s’ case  10 DSG Retail (t/a Currys) v Comet  160 EC Regulation No 1924/2006 on Nutrition and Health Claims made on Foods 298–301 health claims  300–01 nutrition claims  299 Eddie Irvine v Talk Sport  128 electronic cigarettes  349 see also smoking ‘electronic mail’ marketing  110–14 opt-out requirements  112 negotiations for a sale  111 similar products/services  111 soft opt-in conditions  111 viral e-mail campaigns  112 European Advertising Standards Alliance (EASA) 119 European Comparative Advertising Directive (CAD) 152 checklist for comparative advertising  161 European Court of Human Rights  174 Facebook  196–97, 2911 fictious names/testimonials  269–71 Financial Conduct Authority  84 flags 271–72 food 297–307 advertising and  308–14 advertising codes and (the ‘Food’ rules)  301–05 EU pledge  312 health claims  300–01, 304–05 healthy eating  308–09 ‘HFSS products’  309–10, 311–12 licensed characters/celebrities  310 nutrition claims  299 misleading advertising  297–98 see also EC Regulation (‘ the 2006 regulation’) Food Safety Act 1990 297–98 Forgery and Counterfeiting Act 1983  267 Fraud Act 2006 gambling  202–03, 315–26 betting 316 definition 316–17 enforcement 324–25 gaming 316 non-remote 318 Northern Ireland  325 pressures on the industry  325–26 Gambling Act 2005  141, 202–03, 205, 214, 215, 315  Gambling (Licensing and Advertising) Act 2014 325–26 Gambling Commission  205–06, 209, 212, 315 Licence Conditions/Codes of practice 318–19 The Industry Code  322–23 Senet Group, the  324 gaming  210–11, 316 General Data Protection Regulation (EU)  107–08, 132 General Food Law Regulation 178/2002 298 Human Rights Act 1998 (‘HRA’)  52, 132, 268 Information Commissioner’s Office (ICO)  108, 109, 136, 268 Big Data and  117 cookies and  118–19 SMS marketing  112 telephone marketing  114–15 intellectual property  1–54 celebrities and  125–29 client/agency contracts  365–66 sponsorship and  247–48 Intellectual Property Office (IPO)  15, 16–17 Internet Advertising Bureau (IAB) Europe 119 internet, the  181–84 advertorial vlogs  195 blogs/review sites  191–93 customer reviews/interaction  187–88 domain names  48 e-commerce websites  185 keyword 185 native advertising  190–91 regulation 181–84 reuse of internet content  186 search-based advertising issues  184–91 search-provider 185 sponsored link  185 sponsorship 195 third party trade marks  184–85 www.ebook3000.com Index internet, the  continued user-generated content  186–87 vlogging 193–94 see also social media IPA (Institute of Practitioners in Advertising)  358, 375, 381 New Business Pitch Pack  369–71 Pitch Protocol  373 Irvine, Eddie  48, 126 ISBA (Incorporated Society of British Advertisers)  358, 375 judicial review  88–89 Jupiter Unit Trust v Johnson Fry  159 Licensing Act 2003  286 L’Oréal v Bellure  27, 156–58, 164 lotteries 203–04 complex 204 definition 204 prize competitions and  211–12 simple 204 unlicensed 203 Major Events Management Act 2007 (MEMA) 250  Make Poverty History campaign  330–31 malicious falsehood  176–78 ‘advertising puffs’  177 difference from libel  177 litigation tips  178–79 remedies 175–76 similarity to libel  177 maps 272–73 Marie Stopes International (MS)  332–33 McDonald’s Hamburgers v Burger King 158 Mechanical-Copyright Protection Society (MCPS) 224 music 218–27 covers/‘sound-alikes’ 225 fees 222–23 library music  224 moral rights  223 ownership model  224–25 parties/licensors 220–21 performance income  223–24 pitfalls 225–26 scope/extent of licensing rights  221–2 songs 219 sound recordings  219–20 traditional approach  220–21 types of copyright  218–20 National Lottery  203 native advertising  190–91 Ofcom  60, 61, 62, 183–84, 183, 252, 283, 330 Broadcasting Code  292 examples of ban on political advertising 330–34 Office for the Harmonization of the Internal Market (OHIM)  21, 36 Office of Fair Trading  192 Olympic symbols  273 online behavioural advertising (OBA)  119 O² ‘Bubbles’ case  155–56, 164 O² v H3G  155 passing off  44–54, 158 celebrities and  125–26 Champagne example  48–49 consequences of  51–53 damage to goodwill owner  50 disclaimers 50  evidence of  52–53 false attribution  49 false endorsement  47–48 goodwill and reputation  45–46 instruments of fraud  48 legal claims  45 misrepresentation 46–50 reverse 49–50 similar identifiers  47 ‘Swiss Chalet’ example  49 PhonePayPlus  99, 141 pitching 369–73 political advertising  327–38 causes/ideas 336–37 definition 329 examples of bans  330–34 legal challenges  334 non-broadcast 335–36 social advocacy  329 TV/radio 328–30 Portman Code of Practice on the Naming, Packaging and Promotion of Alcohol Drinks  283–84, 285, 286, 289, 291 postage stamps  273–74 Premier Christian Radio  331–32 price claims and indications (PCIs)  228–39, 229 ‘free’ products  237–38 hidden costs/charges  236–37 introductory prices  233–34 legislation governing  229–30 lowest price claims  235–36 main principle  231–32 recommended retail prices  232–33 savings and sales  234–35 387 388 Index Price Marking Order (PMO) 2004  228, 229 Privacy and Electronic Communication (EC Directive) Regulations 2003 (the ‘Privacy Regulations’)  108–09, 110, 119 prize competitions  210–14 betting and  213–14 gaming and  210–11 lotteries and  211–12 prize draws  205–10 free entry routes  208–09 payments to enter 205–08 prize promotions  214 Proctor & Gamble v Reckitt Benckiser  37 quotations 274–75 R (on the application of ADi) v Secretary of State for Culture, Media and Sport (2006) 328 Radiocentre  61, 84, 291 Red Cross/Red Crescent emblems  275 regulatory system  55–120 Rhianna v TopShop  128 road signs  275–76 royal images  276–77 self-regulatory system  57–92 advertising codes  62–64, 65–85, 129–31 complaints 64–65 non-broadcast structure  58–62 rationale for  57–58 smoking/vaping 339–54 anti-smoking advertising  346–47 electronic cigarette advertising  347–52 social media  196–200 celebrity/brand ambassador endorsements  198–200 platform terms and conditions  196–97 Spec Savers v Asda  27 sponsorship 240–57 agreement  245–48, 253–56 ambush marketing  249 benefits for sponsors  242–43 conflicting rights  251 intellectual property rights  247–48 Olympic Games and  241–42 package of rights  243–45 regulatory codes of practice  251–52 rights-holder and  243, 246–47 third parties  248 ‘substantial part’  10–11 Telephone Preference Service (TPS)  114 television advertising  62 copy clearance  84 privacy and  130 Tesco v Elogicom  27 The Flashing Badges Company Limited v Brian Groves  258 tobacco 339–44 promotions in UK  342–43 Tobacco Advertising and Promotion Act 2002 (TAPA 2002)  339–44 sanctions for breaching  344 Tobacco Products Directive 2014/40/EU (TPD 2014)  348–49, 352 trade marks  20–32 badges 259 cars 264–65 celebrities and  127–28 community (CTMs)  21 comparative advertising  29 definition 20 e-commerce 184–85 infringement  25–27, 153–58 legal proceedings and  30 registration (UK)  21–25 advantages of  30–31 challenges to  23–24 duration 23 procedure 23 protection against  24–25 Trade Marks Act 1994 (‘TMA’)  21, 28, 152, 153, 155 ‘exhaustion of rights’  29 parallel imports  29–30 statutory defences  28–29 Trading Standards  99, 100 internet advertising and  183 Trading Standards Institute (TSI)  153, 163 Traditional Herbal Medicinal Products Directive (2004/24/EC)  300 Twitter 197 Unfair Commercial Practices Directive 207–08 uniforms 277–78 United Biscuits v Asda  47 vlogging 193–94 Vodafone Group & Vodafone v Orange  159, 160 www.ebook3000.com 389 THIS PAGE IS INTENTIONALLY LEFT BLANK 390 THIS PAGE IS INTENTIONALLY LEFT BLANK www.ebook3000.com ... supremely well And I like to think that the advertising self-regulatory system, which aims to ensure that every UK ad is a responsible ad, helps towards the success of the sector All advertising, ... sectors The firm frequently advises agencies, brands and individuals operating in the advertising and marketing industries on issues such as digital, broadcast and print advertising, marketing and. .. International and the proprietor of the ‘Adlaw’ UK registered trade mark © IPA Institute of Advertising Practitioners, London, 2004, 2008, 2016 The right of the Institute of Advertising Practitioners to

Ngày đăng: 08/01/2020, 11:03

TỪ KHÓA LIÊN QUAN