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02nd March 2012

Do not forget the ASA

Although often overlooked due to not having the visible teeth of a conventional court action for trade mark infringement, passing off and/or trade libel, a complaint to the Advertising Standards Authority can often be a cheap and extremely effective way of preventing competitors from making undesirable statements or comparisons.

Complaints can be initiated by anyone concerning advertisements appearing in the many common formats including magazines, newspapers, radio, television, leaflets and brochures. As of 1 March 2011, the remit of the ASA was notably extended to cover marketing communications delivered through websites and online social media such as Facebook and Twitter.

There is no cost associated with filing the complaint itself and the ASA will usually provide a decision within 25 to 85 working days of receiving the complaint depending on complexity. Non-compliance can lead to details of the defaulting party being added to a list published on the ASA website. The power of naming and shaming should not be underestimated. It is often the case that a misleading statement made by a competitor will be reproduced on the website or in the marketing literature of its suppliers and customers. This being the case, a similar complaint can be made to the ASA against those third parties. The threat of damage to reputation and alienation by third party suppliers and customers is potentially very damaging for any business and consequently most ASA complaints are treated seriously and decisions tend to be followed.

This mechanism is so effective that, in many cases, disputes about advertisements can be resolved simply through correspondence, with the offending party agreeing to withdraw or qualify its marketing claims.

Hewitsons' Intellectual Property litigation team has a proven track record in successfully resolving disputes involving misleading advertising in a cost-effective manner. For more information, please contact Mark Elmslie (markelmslie@hewitsons.com) or Kostyantyn Lobov (kostyantynlobov@hewitsons.com).

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