An Economist ad may have been voted 5th Best Poster of the 20th century, but the ASA was not prepared to protect it against an uncannily similar execution aimed at the same audience.
Topic: Ad protection
Who: EasyJet Airline Co Limited, The Economist and The Advertising Standards Authority
When: May 2003
Non-broadcast advertising watchdog The Advertising Standards Authority ("ASA") rejected a complaint by The Economist that a press advertisement for EasyJet breached the CAP Code. The Economist's bone of contention was that the EasyJet ad was too similar to one of its own. The original Economist ad was a classic of the 80s, from ad agency Abbott Mead Vickers.
Against the traditional scarlet background the white letters read
"I never read the Economist." Management Trainee, 42.
As Private Eye pointed out in its recent item on the case, it is something of an ad icon and in 1999 was voted the fifth best poster of the twentieth century.
Enter stage left EasyJet, who last year took all its advertising in house. Its April 2003 poster featured the headline
"I would never fly EasyJet". George Smith – Management Trainee, aged 47
Between the two phrases is a ridiculous, gurning Smith and underneath is information about the wonders of EasyJet short haul business flights.
As Private Eye pointed out in its piece, there was an uncanny resemblance, and it seemed to the Economist that this was a copy book case of "unfair use of the goodwill attached to the …advertising campaign of any other organisation" prohibited by clause 21.1 of the CAP Code, the old Code, which applies to this complaint and all complaints received by the ASA before 4 June 2003
But the Advertising Standards Authority disagreed, rejecting the complaint out of hand, without even seeking EasyJet's comments.
In its decision the ASA accepts that the EasyJet ad "clearly uses a concept" derived from the Economist's campaign. However, the complaint is rejected on the basis that "the identity of the advertisers is clear and the advertisement does not denigrate the Economist's brand or campaign".
But, to coin a phrase made famous by Private Eye, some mistake surely.
The "Exploitation of Goodwill" paragraph 21.1 of the CAP Code is not about unclear identification of the advertiser or about denigration of a previous advertisement. It is also not about denigration of brands. These are covered by other provisions of the Code.
As the heading of 21.1 clearly indicates, this part of the Code is about unfair exploitation of the goodwill which an advertiser has built up in a campaign.
Here we have an advertisement that clearly has a strong reputation/goodwill attached to it. Intentionally or not, the EasyJet "version", surely takes unfair advantage of that goodwill by being (1) so closely similar (2) so unsophisticated in execution, particularly with the gurning Smith and (3) targeted at the same readership as the original Economist ad.
One imagines that the Economist is not happy with this decision and may be seeking a review or appeal.
Why this matters:
Two other points of concern arise here.
First of all, here is yet another example of the increasingly legalistic approach on the part of the ASA to the processing of complaints. In requiring denigration of trademarks or advertising and/or confusion before a complaint of this kind will be seriously entertained, the Council seems to think it is in Chancery handling a passing off case.
This is not a case of alleged "passing off". It is a case where an advertiser is genuinely and justifiably aggrieved (as Private Eye believed it should be) and looking to a regulatory body to "do what is says on the tin" and apply the correct provisions of its Code in the spirit as well as the letter.
Our second point is even more worrying. Looking at the new CAP Code, under which all complaints received from 4 June 2003 will be considered by the ASA Council, the "Exploitation of goodwill" paragraph 21.1 has disappeared altogether. Yes, disappeared. In its place has appeared a paragraph headed "Imitation".
Paragraph 21.1 reads:
"No marketing communication should so closely resemble any other that it misleads, is likely to mislead or causes confusion".
Again the issues the ASA thought it had to deal with in its first decision, but more worryingly, now we have no recognition in the Code that the goodwill built up by a particular advertising campaign is deserving of protection against "unfair use" without a need to show confusion or denigration.
We would not dream of suggesting that in coming to its decision in relation to the Economist complaint, the ASA applied the new Code by mistake instead of the old. By adopting the approach that it has, however, the Council has clearly given a foretaste of the much more legalistic and limited protection which the Code will in future be giving to advertisers concerned about others' campaigns that are uncannily similar to their own.
What was it that drove the decision to remove the old 21.1 from the new Code? To use another Private Eye'ism, we think we should be told.