Alex is an IP partner at Browne Jacobson who specialises in advertising and marketing issues, live events, brand strategy, sponsorship and commercial agreements with a large intellectual property element. At our eighth annual Brands Advertising and Marketing Event, Alex Watt spoke about unfair trading in practice. During the event we looked at the changes that are being made to the traditional ways we advertise, market and sell brands in light of the shifting expectations of consumers and how they wish to experience products today. We also reviewed some of the recent legislation and case law dealing with unfair trading, experiential advertising and intellectual property.

1. Alex Watt - Partner, Browne Jacobson LLP

2. Agenda
1.Overview of the Consumer Protection from Unfair Trading Regulations 2008 (CPRs)
2.Overview of the Business Protection from Misleading Marketing Regulations 2008 (BPRs)
3.Enforcement
4.Practical tips for compliance

3. Unfair trading under the CPRs
1.General prohibition on trading unfairly
2.Misleading practices (by act or omission)
3.Aggressive practices
4.Blacklisted practices
Target group
Reasonably
Observant
Reasonably well-informed

4. The BLACKLIST - thou shall not…
1.Falsely claim to be a signatory to a code of conduct
2.Display a trust mark, quality mark or equivalent without having obtained the necessary authorisation.
3.Falsely claim that a code of conduct has an endorsement from a public or other body
4.Falsely claim that a trader/product has been approved, endorsed or authorised by a public/private body or making such a claim without complying with the terms of the approval, endorsement or authorisation.
5.Use bait advertising
6.Use bait and switch advertising
7.Falsely state that offers are only available for a limited in order to elicit an immediate decision and deprive consumers of the ability to make an informed choice.
8.Provide an after-sales service in a language the consumer does not understand unless clearly disclosing this before the consumer is committed to the transaction.
9.Create the impression that a product can legally be sold when it cannot.
10.Present rights given to consumers in law as a distinctive feature of the trader’s offer.
11.Use editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial).
12.Make a materially inaccurate claim concerning the nature and extent of the risk to the personal security of the consumer or his family if the consumer does not purchase the product.
13.Promote a product similar to a product made by a particular manufacturer in such a manner as deliberately to mislead the consumer into believing that the product is made by that same manufacturer when it is not.
14.Operate pyramid schemes
15.Claim that the trader is about to cease trading or move premises when he is not.
16.Claim that products are able to facilitate winning in games of chance.

5. 17.Falsely claim that a product is able to cure illnesses, dysfunction or malformations.
18.Pass false information on market conditions or on the possibility of finding the product with the intention of inducing the consumer to acquire the product at conditions less favourable than normal market conditions.
19.Claim to offer a competition or prize without awarding
20.Describe a product as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item. the prizes described or a reasonable equivalent.
21.Include in marketing material an invoice or similar document seeking payment which gives the consumer the impression that he has already ordered the marketed product when he has not.
22.Falsely represent oneself as a consumer.
23.Create the false impression that the after-sales service is available in another EEA State.
24.Create the impression that the consumer cannot leave the premises until a contract is formed.
25.Make personal visits to the consumer's home ignoring requests to leave or not to return, except as justified to enforce a contractual obligation.
26.Make persistent and unwanted solicitations by remote media except as justified to enforce a contractual obligation.
27.Require a consumer who wishes to claim on an insurance policy to produce irrelevant documents or failing to respond to pertinent correspondence, in order to dissuade a consumer from exercising his contractual rights.
28.Make direct exhortations to children to buy advertised products/persuade parents or other adults to buy for them.
29.Demand immediate/deferred payment for or the return or safekeeping of products supplied by the trader, but not solicited by the consumer
30.Explicitly inform a consumer that if he does not buy the product or service, the trader's job or livelihood will be in jeopardy.
31.Create the false impression that the consumer has already won, or will win a prize or other benefit, when it either does not exist, or any action taken in relation to claiming it is subject to the consumer incurring a cost.

6. Types of misleading practices
(1)Providing false information or presenting it in a way likely to deceive a consumer
(2)Marketing which creates confusion with a competitor’s product:

7. Types of misleading practices
(3) Failing to honour commitments in a code of conduct
(4) Failing to provide, clearly and in good time, information that the consumer needs in order to make an informed decision
Picture removed: Picture removed:
Twirl chocolate bar Cadburys Joy promotion rules
advertising the joy promotion

8. Unfair trading under the BPRs
1.General prohibition on misleading advertising to other businesses
2.Limited circumstances in which comparative advertising is allowed
3. What about the future…?

9. Main types of enforcement
Enforcement action
CPR
BPR
Informal consultation with trader/referral to established regulatory bodies (such as ASA)
TS seek undertaking that the trader will comply
Civil injunction proceedings brought by TS
Civil proceedings brought by consumer
Criminal prosecution brought by TS

10. Practical steps to avoid unfair trading
•Consider whether the advertising is unfair or misleading
•Put yourself in the shoes of your consumers
•Think carefully before identifying a competitor
•Confirm the accuracy of data and statistics, and state sources
•Portray the whole picture
•Be cautious to avoid confusion
•Avoid seeking unfair advantage
•Follow industry codes of practice
- and your own.

11. “THE SECRET TO SUCCESS IS HONESTY AND FAIRDEALING
- AND IF YOU CAN FAKE THAT YOU’VE GOT IT MADE”
GROUCHO MARX