Fri 1st Sep 2017

31 Prohibited activities for brand owners when marketing to consumers in the UK

Brand protection and trade mark attorney James Cornish offers some essential advice for brand owners about marketing to consumers in the UK and following best marketing practices to avoid black listed activites.

Commercial practices are unfair if they are on a list of 31 prohibited black-listed activities. There is no need for the court to consider the likely effect on the consumers for these to be a breach. The blacklisted prohibitions include:

  1. falsely claiming to be a signatory to a code of conduct;
  2. displaying a quality mark without the necessary authorisation;
  3. claiming that a code of conduct has an endorsement from a body which it does not have;
  4. falsely claiming that a trader has been approved;
  5. bait advertising by providing special offers to attract custom when you do not really expect to be able to supply the product;
  6. bait and switch practices;
  7. falsely indicating that products are only available for a very limited time;
  8. changing the language of the after-sales service to consumers, without disclosing this in advance;
  9. creating the impression that a product can legally be sold when it cannot;
  10. presenting consumers’ legal rights as a distinctive part of the trader’s offer;
  11. advertorials that are not clearly adverts;
  12. materially inaccurate claims concerning personal security;
  13. misleadingly promoting a product similar to that of a competitor to confuse as to origin;
  14. ‘pyramid’ promotional schemes;
  15. false claims that the trader is about to cease trading;
  16. claiming that products facilitate winning games of chance;
  17. falsely claiming products cure illnesses;
  18. materially inaccurate information on market conditions to attract sales at conditions less favourable than normal market conditions;
  19. failing to award the prizes described;
  20. describing products as free if consumers have to pay more than unavoidable costs of responding and collecting or paying for delivery;
  21. sending an invoice seeking payment that gives the consumer the false impression that he has already ordered the marketed product;
  22. falsely indicating that the trader is not acting as a tradesperson;
  23. giving the false impression that an after-sales service is available in an EU state other than the one in which the product is sold;
  24. giving the impression that consumers cannot leave premises until a contract is formed;
  25. personal visits to a consumer’s home and then ignoring requests to leave;
  26. persistent unwanted solicitations;
  27. requiring insured persons to produce documents unreasonably;
  28. including direct exhortations to children to buy products or persuade their parents to buy them;
  29. demanding payment for products that are not solicited;
  30. using guilt to get sales; and
  31. creating a false impression that the consumer has won when there is no prize, or claiming the prize is subject to the consumer paying money or incurring a cost.

 

Case example

Blacklisted practices include:

  • letters to consumers saying you have won a first prize of £10,000 without indicating that the consumer must buy a product before being entered into a draw;
  • door to door salespeople refusing to leave premises;
  • promotional presentations at which doormen at exits give the impression that consumers cannot leave;
  • price promotions with a top prize that it is impossible to win; and
  • a sign in a shop saying ‘Closing Down Sale’ when this is false.

For advice on brand protection and trade marks in the UK, Europe and internationally, please contact James Cornish on 44 (0) 207 831 7929 or email james.cornish@pagewhite.com.

 

This briefing is for general information purposes only and should not be used as a substitute for legal advice relating to your particular circumstances. We can discuss specific issues and facts on an individual basis. Please note that the law may have changed since the day this was first published in September 2017

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