Bodyformed for you

Do you remember the Bodyform theme tune?  Sure you do.  It involved a faux-Tina Turner booming “whooooah Bodyform, Bodyformed for you…”.  It was bizarrely catchy and went like this

The recent announcement that Bodyform is resurrecting its iconic theme tune with a “Release Your Whoah – be the next voice of Bodyform” competition reminded us that the last time Bodyform got a bit creative with its’ advertising it earned a complaint to the Advertising Standards Agency (“ASA”), the UK’s independent advertising regulator.

Last autumn the ASA was asked to consider 3 Bodyform adverts which Stella McCartney Limited (“SMC”) objected to.  A magazine advert stated “WIN* Stella McCartney underwear at bodyform.co.uk”.  The asterisk directed the reader to a footnote that stated “*This is not in association with Stella McCartney luxury underwear.  Terms and conditions apply – see website for details.”  An online version of the advert featured similar wording.  The third advert was in another magazine, but failed to include any wording highlighting that there was no formal connection between Bodyform and SMC.

SMC claimed that these adverts were denigratory and took unfair advantage of the SMC brand because they associated it with a product without permission.  SMC also argued  that the adverts were misleading and in breach of the British Code of Advertising, Sales Promotion and Direct Marketing because they implied that SMC endorse the Bodyform product.

The ASA held that referring to another manufacturer’s product as a prize, in the absence of disparaging claims, and describing the brand as a “luxury” item, was unlikely to be interpreted by readers as discrediting that brand.  The ASA also held that a reference to another brand alone would not be interpreted by readers as an endorsement, meaning that even the advert which failed to highlight that that there was no formal connection between Bodyform and SMC was acceptable.

Overall this is a pretty permissive adjudication.  A company isn’t likely to offer a product as a competition prize and then denigrate it.  And it strikes me as a bit of a stretch that in this sort of situation advertisers don’t necessarily have to make any effort to avoid an implication that there is no association with the competition prize brand. 

Had SMC raised an action for passing off and false endorsement, I doubt a court would have been so lenient.  Following the Eddy Irvine  case, it’s well established that if the actions of the defendant produce a false message which would be understood by the market to mean that his goods have been endorsed or recommended by the claimant, then the claimant can succeed in passing off, and be entitled to damages on the basis of the licence fee which would have been agreed by a notional willing endorser and endorsee.

Perhaps it is also reflective of the fact that the ASA is actually an advertising industry body and not (as many people believe) some goverment regulator backed by law. 

Good luck with your Bodyform competition entry!*

*Let’s hope it doesn’t break any rules regarding the regulation of sales promotions.

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