Advertisers have been given the green light to continue to use the name of products they give away as prizes in promotions, without needing the permission of the brand/product owner, following a recent controversial adjudication by the ASA.

The ASA disagreed and found in favour of Bodyform in all respects. Clauses 7.1 (Truthfulness),14.7 (Testimonials and Endorsements) and 20.1-20.2 (Denigration) of the CAP Code were considered, but the ASA ruled there had been no breach. It was decided that the adverts were not likely to discredit the underwear brand or company and that “readers would understand…that [Stella McCartney] underwear was a product of value and a desirable prize.” The ASA also commented that the CAP Code does not require an advertiser to get permission from a brand before referring to a brand. Is it time this requirement was added? Or should luxury brands be grateful with the free advertising in any context? What’s next? Toilet cleaning products offering luxury branded jewellery as prizes? Could coupling a particular product with a luxury brand in an ad ever be deemed denigratory to the luxury brand? Watch this space!  

Some believe this decision is contrary to the ECJ ruling in Copad SA v Dior (Case C-59/08, 23 April 2009, where a “trademark’s prestige” and “the aura of luxury” were found to be “essential” to brand protection. Stella McCartney Limited challenged the adverts for a competition being run by the makers of female sanitary products, Bodyform (SCA Hygiene Products UK). The ads (running in magazines, on packaging and on line) gave the reader the chance to win £100 worth of Stella McCartney underwear. Stella McCartney Ltd argued that the ads were denigratory, misleading by suggesting an endorsement of the product by the underwear brand, took unfair advantage of the brand, and did not make it clear that the brand had no association with Bodyform.