UK Law and Practice Contributed by: Huw Morris, Dominic Bray, Nick Swimer and Rebecca Coleman, Lee & Thompson LLP
an advertorial or piece of native advertising as such would also be automatically unfair under the DMCCA.
notably Thatchers’ Cider’s successful claim against Aldi (Court of Appeal, January 2025). 4.3 Challenging Comparative Claims Made by Competitors Under the Codes, advertisers may challenge advertis - ing claims made by competitors, subject to compli - ance with the ASA guidance on inter-party resolution of complaints. Before making a complaint to the ASA, complainants must first attempt “in good faith” to resolve the issues directly with the competitor. The competitor should respond within five days; if they do not, or if the com - plainant considers that any response inadequately addresses the complaint, the complainant may then complain to the ASA. The complaint to the ASA should not raise issues that are not raised with the competi - tor, and the complainant must confirm that they are not also taking legal action in relation to the same issues. Competitors should not circumvent these rules by posing as consumers. In applicable sectors, challenges can be raised with industry regulators such as the FCA and MHRA, each of which may have greater powers than the ASA to enforce compliance. 4.4 Ambush Marketing There are no special rules related to ambush mar - keting. Event owners will seek to protect themselves (and the rights of their commercial partners) against ambush marketing through registered trade mark rights and the law of passing off (false endorsement) and other IP rights. High-profile national events may be the subject of event-specific legislation, as was the case for the London Olympic and Paralympic Games in 2012 and the Commonwealth Games in 2022. There is specific legislation protecting the Olympic indicia, and the Royal Insignia. 5. Social/Digital Media 5.1 Special Rules Applicable to Social Media Online and social media advertisements fall under the ASA’s remit where communications are “directly con - nected with the supply or transfer of goods, services,
4. Comparative Advertising and Ambush Marketing 4.1 Specific Rules or Restrictions
Comparative advertising must comply with the Busi - ness Protection from Misleading Marketing Regula - tions 2008 (BPRs), which are reflected in the Codes. A comparative claim is one that explicitly or by impli - cation identifies a competitor or their goods and ser - vices. Claims such as “the best” might amount to a comparison with all relevant competitors. To be lawful, such a claim must: • not mislead in a way that is likely to affect the economic behaviour of consumers or injure the competitor (eg, mislead regarding the character - istics of the goods or services or how prices are calculated); • compare like with like – ie, compare goods or ser - vices meeting the same needs; • be an objective comparison of one or more mate - rial, relevant and verifiable features of the goods or service; and • not denigrate or discredit the competitor, nor take unfair advantage of the reputation of the competi - tor’s brand. Comparative claims must also comply with IP laws (particularly trade mark law) and other laws, includ - ing defamation, malicious falsehood and potentially economic torts such as unlawful interference. 4.2 Competitor Copyrights and Trade Marks Use of a trade mark in a comparative claim will expose the advertiser to liability for trade mark infringement, unless the advertiser complies with the BPRs, which will provide a defence to such a claim. Unauthorised use of a competitor’s logo and packaging could give rise to claims for copyright infringement. Fair dealing defences such as “caricature, parody or pastiche” and “quotation” are unlikely to be available for compara - tive claims. Copycat products and services have been the subject of several recent court decisions, most
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