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Tuesday, 21 September 2010

Stella prize for sanitary towel competition: has the ASA boobed?

An Advertising Standards Authority adjudication last week in the UK ruled that the promoters of a competition for their product can offer third party products as prizes even without the third party's consent. In this instance, fashion house Stella McCartney Ltd objected to a promotion run by SCA Hygiene Products UK Ltd -- the manufacturers of Bodyform sanitary towels --  in which SCA offered Stella McCartney underwear as a prize. The ad ran as follows:
“New Bodyform Natural The confidence to do what comes naturally. Discover the naturally soothing sensation of Bodyform Natural our unique new range with gentle Aloe Vera and comforting camomile. You can also enter our prize draw to win £100 worth of Stella McCartney* luxury underwear everyday! And don’t forget to pick up your free sample and share your natural beauty secrets with the rest of us!"
*This is not in association with Stella McCartney.
According to the ASA, since the Bodyform ads claimed that the underwear was a product of value and a desirable prize, the public would not be likely to understand the ads as discrediting Stella McCartney Ltd or its brand. The [voluntary and toothless] Code of Advertising does not require a sales promoter to obtain a third party's consent before referring to its brand. Referring to a third party brand would not even be seen by the public as constituting an endorsement.

The IPKat wonders whether this position is consonant with the view that the Court of Justice of the European Union, makes this a trade mark infringement.  According to some, C-57/08 COPAD v Dior supports the argument that, where the third party brand has an aura of luxury, its distribution as a prize in a sanitary towel competition would damage that aura of luxury and might be opposed even if SCA lawfully purchased its prize knickers in the normal course of trade.

Underwear for cats here
"Change your underwear, change your life" here

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