Abbey National contacted two personal finance aggregation sites threatening legal action.
Topic: Comparative Advertising
Who: Abbey National, MoneySupermarket and Netmortgage
When: October 2000
Where: UK
What happened:
Abbey National contacted two personal finance "aggregation" sites threatening legal action. Without Abbey National's consent MoneySupermarket and Netmortgage displayed comparative information about Abbey National's financial products and those of competitors, mainly comparing mortgage products available direct from retailers with those available through brokers. While other such sites had taken the precaution of seeking Abbey National's permission before showing the Abbey National logo and information about its products, these two sites had not done so. A not entirely unrelated factor was that in the comparison the Abbey National products apparently came out poorly against the opposition.
Why this matters:
There is no reason why comparison sites like this and similar sites such as Shopsmart.com, Kelkoo.com and the projected "Virgin Shopper" site comparing products and their prices on-line should be immune from the various laws and regulations affecting comparative advertising in the UK. For instance, it is illegal to show a registered trade mark in a comparative context if the message of the comparison is significantly misleading. Abbey National said that this was precisely the case here, although MoneySupermarket and Netmortgage deny this, saying that the comparative information displayed enables the consumer to make a better informed choice and is not in any way materially misleading.
Separately, if the comparative site reproduces any material which is the copyright of the owner of the product being compared, this may give rise to a separate liability for copyright infringement. For instance it is likely that the Abbey National logo consisting of a couple walking under an umbrella shaped like a roof of a house is an artistic work and that the "life of the creator plus 70 years" copyright term is still running. In that case, regardless of whether the material itself is misleading, a copyright infringement claim might well lie. Separately, if written material published by Abbey National in relation to the products being compared is replicated on the comparison site there may be an infringement of Abbey National's literary copyright (although it is just possible there could be a "fair dealing" defence if an unexcessive amount of copyright material is taken and the purpose is arguably for "review," "criticism" or for the reporting of current events).
Finally there are the new comparative advertising regulations brought into force in April by way of the Control Of Misleading Advertisements (Amendment) Regulations 2000 (see the separate article in our "Analysis" section on this topic). These Regulations define an "advertisement" as "any form of representation which is made in connection with a trade ,business craft or profession in order to promote the supply or transfer of goods or services…". The Regulations go on to define an advertisement as "comparative" if in any way, either explicitly or by implication, it identifies a competitor or goods or services offered by competitors. None of this seems to give immunity from the Regulations if the comparative material is published by somebody other than an entity offering goods or services which compete with the products which are the subject of the comparison. Moreover, if the Regulations do apply to any of the comparison sites referred to above, then they will need to ensure that the golden rules of comparative advertising contained in the Regulations are complied with. For instance the comparisons must objectively compare one or more material, relevant, verifiable and representative features of products and must compare goods or services meeting the same needs or intended for the same purpose. If any of these and the other 6 fundamental requirements are not followed, the comparison will be contrary to law.
We have yet to see any cases, either in a self-regulatory or legal context, arising out of the new comparative advertising Regulations. Perhaps burgeoning "product information aggregation" sites will change that situation soon!
