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