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Monday, 22 July 2013

No Ricard on Facebook: When intrusive advertising meets online regulation

One of the four contentious posters
While looking for a shelter to protect from the heat wave in France, this guest Kat has recently come across a high court decision concerning a typical summer beverage.

On 3 July the French Cour de cassation delivered a ruling involving a social network, an alcoholic beverage and an association campaigning against alcoholism. The online advertising campaign made by French company Pernod Ricard entitled “Un Ricard des rencontres”, was judged illegal. For the record, this slogan may be understood as “a Ricard brings meetings”. If any French speaking reader has a more accurate translation, feel free to express it.

Launched in June 2011, this campaign was composed of four posters, videos and radio spots broadcast on TV, radio, internet and through two mobile applications. Each poster was made in reference of the “meeting” of the beverage with another product (ice, water, grenadine and mint).
One of the the application was designed to collect codes, allowing the user to access cocktail recipes made of Ricard. Once obtained, the cocktail recipe was shared on Facebook.

In July 2011, the ANPAA (Association Nationale de Prévention en Alcoologie et Addictologie) sued Pernod Ricard asking for the withdrawal of the mention “un Ricard, des rencontres” from the entire campaign. The association claimed that the slogan was made not in consideration of the mixture but as a direct incentive to promote alcohol consumption among youth. The first decision, made as a summary judgment, ordered the withdrawal of the headline from the four posters, TV, radios spots and any other media. Pernod Ricard appealed to the Paris Court of Appeal which, in May 2012, ruled in the same way against the company. It took another year for the case to arrive before the Cour de cassation. 

In France, public health code regulates the use of alcohol and tobacco products in advertising.  Regarding online advertising, a recent law dated July 2009 brought an additional paragraph to Article L 3323-2. The rule is that alcoholic beverages can be marketed on any online communication service, but with several exceptions. First, the advertising should not be addressed to youth. Secondly, no propaganda, publicity or advertising should be considered as intrusive or interstitial. These two terms have raised a lot of concern among French lawyers since they were not defined anywhere. Interstitial advertising is a transitional advertising screen that appears between two web pages, particularly while a user is waiting to download the requested web page. Intrusive advertising refers to many different definitions, from highly denigrating terms to more balanced expressions. It may be defined as any advertising seen online by a user that would distract him from what he is watching. As a result, interstitial advertising is always intrusive but not all intrusive advertising is interstitial (for instance, pop-up or expand banners). 

Facing the difficulty of defining those two types of publicity, there was hope that this decision would bring some certainty. It did not.

Two possibilities to contest the advertising were raised. If any of the following questions could be answered with the answer "yes", the product could not be marketed online.

1.Was the ad marketed at youth?

Pernod-Ricard argued that 64% of iPhone users and 58% of Facebook users were older than 25 so the advertising could not be considered to be made for youth. The Court confirmed the appeal decision, stating that the slogan did not only refer to the cocktails formed by mixing anise and water, ice, grenadine and mint. The use of the term “rencontres” in the consumer mind obviously referred to the connexion between people, therefore associating the alcoholic beverage with the possibility of creating unexpected relationships and giving an incentive for people to consume alcohol. Indeed in French, the word "rencontre" can relate not only to a meeting but also to an unexpected date. The court added that this argument was particularly true for young people using new technologies, especially since the sign # was used in every poster. 

Merpel wonders why using # has anything to do with being young. Maybe she could use the official account @Courdecassation to get an answer ? The court is also using hashtags when tweeting. There has to be a young judge !

2.Was it an intrusive ad?

In 2012 the Court of Appeal ruled that, because the message sent by the advertiser on the user’s Facebook wall would appeared in an “unexpected and systematic way”, the advertising had to be considered as intrusive and therefore illegal. The Cour de cassation used the same argument and did not add a word on what is to be defined as intrusive advertising. Thus the Cour de cassation rejected the demand made by Pernot Ricard. The ruling made in the appeal on May 2012 is now definitive. The French company is no longer allowed to use the slogan on any media and will have to pay the claimant's attorney fees.

Perhaps the most important issue raised by this case was the possibility of using Facebook combined with a mobile application to advertise alcohol beverages. It remains unclear why this ad should be considered as intrusive since the user gave his consent. The presence of the message on a Facebook wall does not come from a unilateral decision taken by the advertiser. 

It seems that the terms “unexpected” and “systematic” are synonyms of "intrusive", and that is enough to get a legal definition. As the consent expressed by the user does not make a difference here, one could argue that there might be a need for other decisions to clarify this.


Mark Perkins said...

rencontres in French can also mean 'a date'

So the not so subliminal meaning is

A Ricard for dating (or for dates)

Jaime Angeles said...

In the Dominican Republic Microsoft decided to ALSO oppose Apple trademark application of APP STORE. It was very interesting, as we speak SPANISH. We represented Microsoft in DR. The Court of Appeals Decision No. 1007-2012 dated December 14, 2012 which REJECTS the Appeal interposed by Apple Inc. against Resolution. No. 0001-2012 dated January 12, 2012 issued by the General Director of the local PTO, confirming the rejection of application for “trademark” APP STORE.

The Court based its decision on the Trademark definition contained in the Dominican IP Law and rejected APPLE arguments, confirming, as indicated in the local PTO Resolution, that as per Art. 73 c) a sign cannot be registered when it can serve to qualify or describe any characteristic of the goods or services (to be protected) or when the sign lacks sufficient distinctiveness.

According to the decision of the Court of Appeals, APP STORE "has been used in the field of information technology, especially in the field of internet and users of services of applications for different utilities in the today called smart appliances such as mobile phones, laptop among others, being "App Store" actually used generically by such users, hence Plaintiff has asserted a wrongful claim."

The Court of Appeals also said that "(this Court) shares the arguments contained in the contested decision, since the term APP Store is a widespread identification among program applicators via internet services sources."

Plaintiff might be taken the case before the Supreme Court of Justice.

Please let me know how I can send you a copy of the decission.

Bertrand Sautier said...

Dear Jaime, I believe your comment belongs to another post. Feel free to post it again under the precedent article so Laetitia could answer you!


Marie Claude said...

I interpret the slogan as being more like the singular and plural forms of a word, like we would say "un animal, des animaux", suggesting that the plural of a bottle of Ricard would imply or lead to meetings or dates.

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