Being alive to the laws that govern marketing and knowing when to seek assistance is vital, writes Jane Bainbridge.
As the regulations governing advertising and marketing proliferate, so a 'chat with the lawyers' is becoming a more frequent occurrence for marketers. Numerous areas of their day-to-day work now require, with some degree of regularity, legal and contractual advice, and a few will inevitably find themselves immersed in court proceedings.
With so many changes taking place, and at such a rapid rate, marketers and advertisers cannot risk being ignorant of the latest regulations and the way in which they apply to their industry. Whatever the area requiring legal attention, the one thing on which all lawyers agree is that the earlier their advice is sought, the less costly it is likely to be in the long run and the smoother the product launch, advertising campaign or design process will be.
Detailed below are the five areas in which marketers are liable to encounter legal problems. Listed in the tables are the top law firms specialising in each, based on the Legal 500 list. This is an annual directory sent to buyers of legal services, either at FTSE listed firms or big privately owned companies, as well as the legal community. The law firms are ranked on the basis of reputation as determined by talking to clients, lawyers themselves (to obtain peer opinions), banks and financial institutions.
The issues surrounding advertising are often attached to comparative campaigns, but one of the most high-profile disputes in recent years centred on unauthorised use of a character. In 2003, the launch campaign for directory enquiries service 118 118 featured a man dressed in the style of a runner from the 70s. David Bedford, a former athlete whose career was at its peak in that decade, complained to Ofcom that the company had caricatured him without his consent.
'Bedford threatened legal proceedings and complained to the regulatory authorities,' recalls Dominic Farnsworth, a rights lawyer at Lewis Silkin, which advised WCRS, the agency behind the campaign, on the case. 'If an ad in the UK features an image or likeness of a living individual, the advertiser needs the consent of that person. Bedford argued that his consent should have been obtained; it hadn't been.'
Ofcom upheld the complaint and ruled that 118 118 had breached the Advertising Standards Code. However, it did not ban the company from
using the character, because Bedford had delayed making his complaint.
'If people aren't happy with the advertising content, they can go to court, but that is the stressful, costly route. Alternatively, they can go to the regulatory bodies (the Advertising Standards Authority or Ofcom),' says Farnsworth. 'No damages are paid on regulatory complaints, so Bedford received none. A regulatory complaint doesn't cost much and you don't get hit with costs if you are unsuccessful, so it's the lower-risk route.'
One of the most oft-cited legal cases within marketing concerns 3's use of rival mobile operator O2's trademark 'bubbles' in a campaign for its ThreePay service. The dispute not only offers a case study in the rules surrounding comparative advertising, but also involves the issue of intellectual property.
'Comparative advertising has a set of regulations and laws that overlaps with trademark law,' explains Simon Chapman, a partner at intellectual property and technology dispute resolution group Field Fisher Waterhouse. 'O2 had registered its brands as well as its bubbles. 3's ads comparing its prices with those of O2 used the bubbles. O2 argued that by using this secondary branding, 3 had gone too far. Comparative advertising is an area where a brand can use a rival's trademark as long as it sticks within the rules. These include ensuring the ads do not cause confusion or discredit the trademark provider. …