Dispute over directory enquiries advertising

United Kingdom

Background

Following deregulation of the directory enquiries market in the UK, over 13 companies are vying for a share of the lucrative £350m revenue stream, with many unleashing aggressive advertising campaigns. BT recently launched its press campaign under the banner, "Public Notice"and stating "BT Directory Enquiries is being updated. The old 192 number will be replaced by 118 500".

BT serves injunction on competitor

Immediately following publication, a competitor, The Number UK Ltd, launched a near identical advert which mimicked both the typeface and copy of the BT advert, but contained their own telephone number along with the statements "The new number is 118 118", and "Not BT (thank goodness)". It is reported that BT is seeking an injunction on the basis of copyright infringement to restrain The Number from continuing this campaign.

Oftel complains to the ASA about BT's campaign

BT's own ad campaign came under the scrutiny of the telecoms watchdog, Oftel, which has complained to the ASA on the basis that the advertisement misleads consumers into believing that BT still controls directory enquiries. The ASA is expected to publish its adjudication in the coming weeks.

Conclusions

"Copycat"advertisements are not unusual, but can be a high risk strategy. The risks are that the original advertiser will claim that the "copycat"advertisement infringes copyright, if it can be said that a substantial part of the original advertisement has been copied. There may also be arguments about trade mark infringement or passing off, if the name, logo or get up of the original advertiser has been used. Finally, complaints to the ASA may be upheld under clause 21.1 of the CAP Code, which provides that no marketing communication should "so closely resemble another that is misleads, is likely to mislead, or causes confusion." Pre-publication legal clearance can help minimise these risks and ensure that your campaign is a success.

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Contact

For further information, please contact:

Susan Barty
CMS Cameron McKenna
T: +44 (0)20 7367 2542
[email protected]

Victoria Baker
CMS Cameron McKenna
T: +44 (0)20 7367 3451
[email protected]

Simon Moran
CMS Cameron McKenna
T: +44 (0)20 7367 3680
[email protected].