Thames Water tap won a Which? magazine mineral water taste test but lost round 2 after mentioning the victory in advertising.
Who: Thames Water, the Advertising Standards Authority("ASA") and Health Which?
When: February 2001
In a recent Health Which? taste test Thames Water’s tap water came equal top for taste alongside seven bottled waters and ahead of 33 others. Thames Water boasted about the result in national press ads saying "In a recent Health Which? Magazine survey, Thames Water came out on top for taste against bottled varieties." They had not, however, sought the consent of Health Which?’s publishers, the Consumers’ Association ("CA"), before doing so.
As it is the CA’s established policy to refuse Which? survey winners permission to use the magazine’s name and research in advertising, the CA complained to the ASA. The National Mineral Water Information Service complained also and the outcome was two "complaint upheld" findings against Thames Water. Firstly, the Code, the British Code of Advertising, requires advertisers to obtain permission before referring in advertising to third party tests. Secondly, the ASA regarded the "came out on top for taste against bottled varieties" claim as misleading since Thames Water tap did not beat all bottled waters tested.
Why this matters:
If a product wins out in a Which? Magazine survey it is often sorely tempting to crow about the result in advertising. And why not? It is a matter of fact in the public domain. Also, (although the CA may not see it this way) it is unlikely that ad references to Which? Surveys like Thames Water’s will infringe the CA’s legal rights. Bona fide descriptive use of the Which? trade mark should not be a trade mark infringement even if Which? is registered for mineral water. There will be no copyright infringement so long as no material parts of the Which? survey article itself are reproduced, and passing off will be difficult to establish if the reference is not misleading, for instance by suggesting Which? are co-producers of the ad.
On the other hand, the British Code of Advertising makes it clear that permission is needed before third party tests are referred to, so regardless of the fact that CA would have refused if approached, the Code had been breached when Thames Water went ahead without contacting the CA.
The second finding underlines the need to take care with reporting test results. It also highlights again the more restrictive view of comparative ad claims taken by the ASA compared with the UK courts. Chancery judges now consistently take a robust view of knocking copy in trade mark infringement and malicious falsehood cases. They believe consumers to be well used to ad hyperbole and unlikely to interpret ad claims literally. The ASA on the other hand, continues to credit the consumer with less street savvy and, as a result, takes what some might regard as an overly narrow line on comparative claims.
So advertisers and agencies wishing to make comparative claims may sometimes find themselves having to make other comparisons, between the likely outcome of litigation and the result of an ASA investigation.