Five years on from the decision to extend UK advertising regulations to ads published on advertiser-owned online platforms (think YouTube, Facebook and Twitter), policing competitors’ social-media presence is now a well established strategy for big businesses. It is hardly surprising, therefore, that Unilever and Beiersdorf have locked horns (yet again) over an
ad for Beiersdorf’s Nivea Protect & Care deodorant, broadcast both through a TV campaign and Nivea UK’s YouTube channel in the summer of 2016. At a cursory glance, the YouTube viewing figures for the various versions of the Protect & Care ad across Europe, Asia and the Middle East are well in excess of 3 million, making the reach of such cross-border online content a significant force to contend with, quite aside from the traditional forms of broadcast. From a UK perspective, ads are regulated by the Advertising Standards Authority (ASA), which monitors and enforces compliance to a set of advertising codes, centred around common sense principles aimed at protecting consumers from misleading claims and offensive content, amongst other harmful practices. Both consumers and competing businesses are entitled to submit complaints to the ASA alleging breach of such rules. From the perspective of Unilever, this process presented a golden opportunity to obstruct the marketing of a key competitor. In particular, the Protect & Care ad featured a voiceover that stated “On the one side you want strong deodorant protection that lasts all day long. On the other side, you want that soft skin feel. Now you can have both, with the care of Nivea.” At the same time, a tin of Nivea Crème was shown rolling towards and merging with a generic aerosol canister, which changed to take on the branding of the Nivea Protect & Care deodorant. Unilever complained to the ASA that the ad was misleading to the average consumer, insofar as it implied that the deodorant product contained the same ingredients as Nivea Crème and therefore had similar skin care properties (which, Unilever alleged, it did not). In plain English, Unilever was suggesting that the average consumer would understand the product to be a moisturiser, or at the very least a moisturiser and deodorant. Ultimately, the ASA ruled in Beiersdorf’s favour, finding that the ad was not misleading. Key to the finding were Beiersdorf’s submissions, which evidenced that 10 out of the 16 ingredients of the deodorant did in fact have tested caring and/or skin conditioning properties, and that the implication that the product would share such properties was therefore valid. In respect of the dramatisation of the Nivea Crème tin rolling into the aerosol can, the ASA agreed that consumers would not take this literally to mean that the Nivea Crème product was contained within the deodorant. It was instead a metaphorical allusion to the moisturising properties of the product, of a type with which consumers were familiar. The outcome of this decision is perhaps unsurprising, particularly considering the prevalence of many similar deodorant and antiperspirant ads in recent years emphasising the moisturising/skin-caring properties of their products. Indeed, Unilever was not ignorant of this backdrop and can only ever have viewed its complaint as part of a wider strategy in its hostile relations with Beiersdorf (notably, it has also submitted similar complaints in relation to different versions of this ad in other jurisdictions). The tactics involved here, utilising the ASA as a forum to cause difficulties for business rivals, remain interesting. Whilst this case did not involve a particular brand infringement angle, the same strategy could be employed in cases where a competitor appears to pass itself off as another business in its advertising campaigns, either though the use of distinct trade marks or more general aspects of brand get-up. Indeed, in many cases, a complaint to the ASA offers a relatively inexpensive and quick option to target a competitor’s marketing practices which may be crossing the boundaries of fair market practice. It is important to bear in mind, however, that such complaints will only ever be confined to specific advertising materials and will not offer a comprehensive method to prevent infringing activities, nor compensation for any damage caused to companies whose intellectual property rights have been misused.
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