Legal Bites - 14 February 2020

Some short legal snippets that we hope are helpful.

Legal bites

    Competition T&Cs on social media

    We are often asked whether there are requirements to display competition and promotion T&Cs when promoted through social media.
    Speaking generally, the rules around promoting competitions are the same regardless of medium – so, there should be, in theory, no difference between what you should disclose in a print ad as compared to a social post.
    When space is at a premium, you will need to be wiser about how the promotion will comply with section 8 of the CAP Code, in particular, how posts need to incorporate “all applicable significant conditions or information where the omission of such conditions or information is likely to mislead”.
    Simple, clear promotions are probably better suited for social media, so that readers can understand the mechanics of the promotion at a glance. For promotions that are more complex, agencies and their clients will need to find a way to communicate the key terms effectively and not mislead viewers. One possible solution is to provide a link to the full details and terms of the promotion on an external website. If the full terms are available off-post, then best practice would ensure that participants cannot submit an eligible response without reviewing the full terms.

    Albert Yung – IPA Senior Legal Counsel

    Protecting your pitch materials

    Do you practice safe pitching?
    Agencies should ensure that their pitch submissions are protected. The IPA has a Pitch Centre containing resources and tools to help prevent others from copying your agency’s pitch proposals, including your confidential information and your intellectual property.
    Our advice is always to sign a pre-pitch NDA (or confidentiality agreement) that protects the agency’s interests. The Pitch Centre contains a template – agreed with ISBA - that agencies can use with prospective clients. If you are asked to sign a prospective client’s own document, review it carefully to see if it offers your agency the same protection, and seek legal advice if doesn’t (or suggest that they use the industry standard template instead).

    Albert Yung – IPA Senior Legal Counsel


    We are receiving a lot of creative ideas, scripts and executions from agencies which are intended as humorous parodies, and often have a playful reference to a competitor or to another third party. They tend to include a reference to a brand character, brand or celebrity name, brand colours and/or logo or other assets which are often protected as registered trade marks. The agencies often refer to US parody ads as inspiration and believe that similar techniques can be replicated in UK advertising. However, this is not generally the case. While there are parody fair use exemptions available to help avoid trade mark infringement in the US, we don’t have any parody exemption or defence which covers the use of third party trade marks in the UK. It is important to remember that a trade mark infringement action is available in a number of circumstances including where the trade mark has a reputation in the UK and the use of the mark, without due cause, takes unfair advantage of, or is detrimental to, the distinctive character or the repute of the trade mark. As noted in our legal alert, the UK does have a parody defence to copyright infringement – rather than trade mark infringement – but its use is limited and unlikely to apply to most advertising scenarios.

    Helen Bowyer – IPA Associate Director (Advertising Law)