While in the UK, Procter and Gamble and Unilever fight over their very similar hair care product straplines, two Californians claimed their insurer’s ‘You’re in good hands with us’ slogan was a fraud and breach of contract.
Topic: Brands
Who: Procter & Ga Who: Procter & Gamble and Unilever/Allstate Insurance Company and Mr and Mrs C Smith
Where: UK and California
What happened:
Busy times for slogans and straplines! In the UK Procter & Gamble and Unilever were scrapping over who had the better right to use the words "secret" and "beautiful hair" in strap-lines for hair care products. Whilst in the sunshine state, home insurance policy holders Christopher and Laura Smith brought fraud proceedings against insurer Allstate Insurance Company for allegedly failing to live up to its "You're in good hands with Allstate" slogan.
Recently advertising by Unilever for its Dove brand hair care products used the strap-line "Secret to beautiful hair". Procter & Gamble on the other hand used the phrase "What's the secret of beautiful hair" in a teaser campaign for its Pantene range. P&G has reputedly threatened to take Unilever to court if the Dove ads are not pulled.
In California, Chris and Laura Smith's home suffered extensive fire damage after they took out a homeowner insurance policy from the Allstate Insurance Company. In that policy appeared the words "You're in good hands with Allstate". The Smiths made a claim under their insurance policy, but when the local sheriff's investigation found no accidental cause of the fire and Allstate began its own investigation, the Smiths filed a suit in the California state court against Allstate. They alleged fraud by Allstate for failure to honour its promise to treat the Smiths with "good hands" as per their slogan. In support of its claims, the Smiths asserted that the evidence supported a factual inference that Allstate never intended to honour its promise to treat the claimants with "good hands" when the insurance coverage was sold. But District Judge John S Rhodes Sr granted Allstate’s motion to dismiss the fraud claim. The "You're in good hands with Allstate" slogan he held, "lacked the meaningful specificity necessary to be considered a representation of fact". Sales talk and advertising slogans, he went on dismissively "were loose general statements made by sellers commending their wares..[upon which] no reasonable man would rely".
Why this matters:
In the Procter & Gamble/Unilever spat, this is just the latest tiff in one of the longest running grudge matches in marketing history. It is difficult to see how either side can do anything other than write this off to plain bad luck. The law of copyright will certainly not protect short descriptive phrases of this kind, it is difficult to see either strap-line being registrable as a trade mark and the law of passing off is hardly going to help unless a strap-line has been used by either one or the other for a substantial period of time. Only in this way would it have acquired distinctiveness, goodwill and the so called "secondary meaning" by which any consumer who saw the phrase would instantly think of the product it was used to advertise.
In the American proceedings, this is another case where the dividing line between "mere puffery" upon which no legal reliance can be replaced, and a legal representation has been drawn. Although one might be tempted to say "it could only happen in California" the principles which have been applied by the American judge in the case are vary similar to the approach which would be adopted here in the UK. This means that it is likely that an English judge would have reached the same conclusion on similar facts, but there have been cases where strap-line type claims have been made in UK marketing material, for instance in the category of financial services, where the court has held that the wording in question would be relied upon by the consumer and could be regarded as a representation of fact. As ever, each case will turn on its own facts, but before finalising strap-lines or slogans, advertisers would do well to stop and think for a moment about the degree of specificity in any claim embedded in a strap-line.
Acknowledgement:
For the Allstate/Smiths case report, our thanks are due to Doug Wood of New York law firm Hall Dickler Kent Goldstein and Wood, US members of the European Advertising Lawyers' Association.
