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Advertisers face legal obstacles
Sunday, February 15, 2009 By Catherine O’Mahony
That was the warning last week from Dublin solicitors’ firm Beauchamps, which hosted a seminar about advertising and the law.

Maureen Daly, partner and head of technology and intellectual property at Beauchamps, said that advertising was subject to the 2007 Consumer Protection Act, the 2007 Misleading and Comparative Marketing Communications Regulations and the 1996 Trade Marks Act, as well as many codes and legislation that affect particular sectors, such as alcohol and children’s advertising.

Other speakers included Ed McDonald of the Association of Advertisers in Ireland and Niall O’Brien, partner in Beauchamps.

In general terms, an advertisement is misleading if it’s likely to cause the average consumer to be deceived or misled, or to make a decision they would not otherwise make. It’s deemed unfair if it is contrary to the standard of skill and care expected of a trader and damages consumers’ ability to make an informed choice, leading them to make an economic decision they would not otherwise have made.

Daly noted that the National Consumer Agency’s website featured a list of businesses against which action had been taken by the agency for violation of the Consumer Protection Act.

Further pitfalls occur if the method of communication (namely, text messaging and email) leads an advertiser to target a customer who has not consented to that communication, which is an area of increasing concern to the Data Protection Commissioner. Each unsolicited message can now attract a fine of up to €5,000 on summary conviction.

On indictment, fines range from€50,000 for an individual to €250,000 for a company, or 10 per cent of its turnover.

‘‘It’s not only about protecting the consumer, but about doing what makes good commercial sense,’’ Daly said.

‘‘In the case of direct marketing, it should be part of your business strategy to target only those consumers who have consented to receiving communications. It makes sense not to waste money on someone who doesn’t want your service.”

In recessionary times, traders may be more likely to react to advertising by a competitor that poses a threat to their business. Particularly tricky is the use of another company’s trade mark in an advertisement for the purpose of comparing goods or services.

O2 and rival mobile operator 3 waged a legal battle over this issue, after 3 used the signature O2 bubbles motif in a TV campaign alongside a comparison of tariffs.

The British case ended up before the European Court of Justice, which stated that trade mark rights could not be enforced if the comparative advertisement did not cause confusion among the public.

Daly said advertisers should adopt best practice when creating a comparative advertisement by ensuring that the advertisement was fair, not misleading or confusing, compared goods/services that were similar, and avoided denigrating or discrediting the competitor’s trade mark.

‘‘Companies need to take care that they do not infringe their competitor’s intellectual property rights, but must also monitor use of and enforce their own rights,” said Daly.

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