Rogue Traders & Knocking Copy

Over the years copywriters from advertising agencies have tried to develop brand loyalty – to persuade consumers to switch brands for lots of reasons.

Making comparative statements about a rival product has always been a risky business. Advertisers refer to it ‘Knocking Copy’. It has probably kept a few lawyers in work for years.

Generally, established consumer protection legislation has aimed to impose sanctions on traders if they engage in unfair commercial (mainly marketing and selling) practices against consumers.  

A raft of new Regulations have been introduced to repeal a number of well established domestic laws, like most of the Trade Descriptions Act 1968, in order to bolster and refresh consumer protection legislation but they also impact upon businesses.

The Business Protection from Misleading Marketing Regulations 2008  now makes misleading business-to-business advertising illegal.

These Regulations bring into domestic law The European Directive 2006/114/EC and replaces the earlier Control of Misleading Advertising Regulations 1988.

Advertising means any form of representation by a business to promote the supply, or transfer of goods or services. It would be misleading where it deceives or is likely to deceive businesses.

The Regulations address the conditions under which it is permissible to make comparative advertisements (that is to say: any advertisement which identifies a competitor or a competitor’s product).

This form of advertising should not compare products or materials not designed for the same purpose, or seek to confuse traders as to who is the advertiser and the competitor.

The advertising must not imitate or replicate products bearing a protected trade mark, or trade name, nor take unfair advantage of a competitor’s reputation through the use of their trade marks, trade names, other distinguishing marks, or country of origin information

Where a trader is found to have engaged in such misleading advertising, even in a business to business context, then they may face criminal proceedings brought by the Office for Fair Trading and/or local authorities.

Businesses and their employees need to take all reasonable steps to ensure their adverts to promote their goods or services will not in any way mislead.

Even a business which simply publishes (or arranges to publish) misleading advertising will commit a criminal offence – even if they had no reason to suspect that the publication might breach the law.

The enforcement agencies also have the power to seek injunctions to stop advertisements and then, through various powers, investigate suspected breaches with the power to enter a trader’s premises with or without a warrant.

Written by Ben Judge, Solicitor at Newsome Vaughan LLP, Greyfriars House, Greyfriars Lane, Coventry, CV1 2GW. Telephone 024 76 234211 Email: benj@n-v.co.uk