Summary 

Challenger deodorant brand Fussy has had a Christmas ad sanctioned by the Advertising Standards Agency (‘ASA’). The decision highlights how brands can use the ASA for more playful competitive marketing claims and copycat products.

Background 

Fussy posted an image of a fictional deodorant called MYNX that looked very similar to Unilever’s LYNX brand font (AXE for American readers) and its ‘Africa’ scent green, red and black colourway. The MYNX image was accompanied by: “£733m is wasted on unwanted gifts each year” (‘the Ad’). The Instagram and LinkedIn variants of the Ad also referred to “the UK’s […] most unwanted […] Christmas giftpack” and “a sustainable alternative to the UK’s top Christmas selling gift set…”

Unilever filed an ASA complaint on the basis that the Ad discredited and/or denigrated its products. Fussy denied any comparative denigration, alleging that they were canvassing opinion on launching MYNX as a new refillable deodorant.  

Fussy’s argument was unconvincing generally, with any real-world use giving rise to a potential trade mark infringement claim by Unilever. In addition to claiming confusing similarity between LYNX and MYNX, Unilever could have claimed that Fussy were infringing their trade marks by taking unfair advantage of their repute in the LYNX brand name and look/ feel. The LYNX UK trade mark portfolio consists mainly of LYNX word marks i.e., there is little coverage for LYNX (stylised) and/or the colourway combinations or full product representations. This means that in an infringement case more emphasis would need to be placed on the repute of the LYNX [word] mark rather than the overall trade dress, despite this having been clearly been emulated, too – a sub-optimal position in a consumer goods lookalikes case. 

The ASA considered the terms “unwanted gifts” and “most unwanted” in the Ad to be pejorative comments suggesting that Lynx products were cheaper and less desirable than its competitors. MYNX was also deemed to be evocative of the word minx (a flirtatious person who enjoys creating trouble for others), such that MYNX would serve as a derisory comparator of LYNX with Fussy’s deodorant. This derogatory inference went beyond a robust and objective comparison between the two deodorant brands. 

It's likely that the Ad was a one-off, seasonal advert for Fussy that they took a creative risk on. As such, the ASA's requirement that the Ad not be shown again is less impactful than it would have been in campaigns with longer term potential. Here, though, Unilever may have wanted to send a longer-term message to a challenger brand about targeting their product via inferiority claims, with the ASA’s decision also requesting that Fussy ensure their future ads do not discredit or denigrate the LYNX brand or their other competitors’ products.

Take-homes

• The ASA is willing to unpack the semantics of advertising claims beyond just the literal words and take a creative approach to brand positioning.
• An ASA claim can form part of a wider enforcement strategy in cases of IP infringement or comparative advertising claims.
• Trade mark claims for lookalike products can be fortified by having the right registrations for product and packaging designs.