Introduction
According to Mintel, the total UK market for deodorants was believed at £459 million in 2008. Unilever's 'Lynx' brand for men had projected sales of £92 million during the same period supplying it market share of 20% (Bainbridge, J. , 2009) Tyrelever Beauty products has recently obtained a stock of low priced deodorant for men from SOUTH USA. The proposal is to rebrand this deodorant and market it through retail outlets in the united kingdom under the brand name 'Stynx'. It also proposed to use a star endorsement within the product advertising. Tyrelever's current contracted star, Gordon Oliver, is not considered ideal for this role and the proposal is an altered image of the footballer David Beckham be utilized to endorse the product. The product branding and superstar endorsement strategies are made to take market show from the Lynx brand and therefore create Stynx as a credible guy deodorant brand in its own right. By implementing this strategy and by rates the product competitively, Stynx desires to produce a significant go back on its original investment.
Objective of the Report
This report recognizes and critically examines the legal, regulatory and ethical issues from the proposals layed out in section 1. 0 above. Inside the light of this analysis the record also makes recommendations as to the way the advertising of the proposed 'Stynx' brand should continue and exactly how that advertising can be supported and leveraged by deploying additional marketing strategies.
Legal Issues
There are lots of legal issues that make a difference the nature and content of adverts as well as the use of stars within advertisements. If an advertiser creates an advertisements that is misleading, it could be unlawful in a number of different ways. It may, for example, constitute 'a destructive falsehood' or 'infringe a listed trademark'. A brand is thought as 'a distinctive design, picture, emblem, brand or wording (or mixture) affixed to goods on the market to identify the manufacturer as the source of the merchandise and to distinguish them from goods sold or made by others' (Hill G. N. et al. , 2005). The Lynx name is a documented hallmark of the Unilever Group (Unilever, 2009) and, consequently, it is capable of being infringed by another product that makes an attempt to 'pass off' its brand name as the Lynx brand.
The Legislations of 'Passing Off'
The regulation of 'passing off' is a common legislations tort that is created by the judiciary. It pertains to a misrepresentation created by one business which damages the goodwill of another business. Typically, this calls for passing off the products or services of 1 business as those of another. Generally businesses will have protectable rights under the law of moving off in relation to trade marks, brands, slogans and other elements of advertising where they have got accrued goodwill (Ali, I. , 2005). There is a distinct possibility that the proposed 'Stynx' brand name will be observed as 'transferring off' the 'Lynx' brand because the labels are so similar and the products using the brands are both male deodorants. You will find three main points that need to be satisfied to define as transferring off for legal action. These items were defined by the House of Lords in the famous legal case of 'Reckitt & Colman Ltd v Borden Inc' (1990) 1 WLR 49, sometimes also called the 'Jif Lemon' case. The three items described by the judges in this case were i. There exists goodwill in the defendant's brand name. This will be the case in conditions of the 'Lynx' brand which includes been signed up as a trademark since 1985 which is the UK's number two deodorant brand (after 'Sure'). By definition, therefore, they have accrued a great deal of goodwill evidenced by its sales and market position. ii. The offender's brand name has misled consumers into thinking that there is a reference to the defendant's brand name. This is common 'moving off' and, as explained earlier there is absolutely no uncertainty that the Stynx brand name will mislead consumers into believing that it is either 'Lynx' or has a detailed link with it. iii. The action has resulted in damage to or a odds of damage to, the defendant's goodwill. The type and quality of the Stynx product is greatly inferior to the Lynx product and has a different smell. This will certainly damage the defendant's goodwill if customers unintentionally choose the Stynx brand pondering it to be Lynx. It'll obviously be necessary to consult Tyrelever's lawyers over this problem but the primary research above suggests that Tyrelever would maintain a very weakened position in conditions of its potential to defend any legal action by Unilever in terms of transferring off.
Contract Law
Whilst it may be undeniable that Gordon Oliver's epidermis complaint and putting on weight does not make him the ideal 'face of Stynx' there is certainly the issue of his contract to consider. There is no clause in the deal which allows Tyrelever to terminate said contact due to physiological changes on the part of the other party to the contract, namely Gordon Oliver Tyrelever's deal gives Gordon Oliver 'exclusive privileges' to the endorsement of Tyrelever cosmetic brands. The current contract will not expire until 31 Dec 2009 and is at the mercy of a six month amount of notice for it to be terminated by either get together.
Copyright Law
With respect to the use of an image of David Beckham in the advertisements for Stynx then there are issues of copyright laws infringement to consider. The copyright to the picture that Tyrelever blueprints to use will be held by the originator of the image, particularly the professional photographer, or his or her agent. Copyright legislations is a powerful legal tool used to avoid the unauthorised appropriation and use of, between other activities, images. In the united kingdom, courts can impose an endless fine and even up to ten years in jail on copyright infringers. Primarily in america, and now in the united kingdom too, attorneys have successfully extended the use of 'trademark' and 'moving off' laws to safeguard their super star clients (Lydiate, H 2004). The legal circumstance that brought this issue to the forefront in the UK involved the Solution One racing drivers, Eddie Irvine who efficiently sued Talk Radio (now Talksport) for the unauthorised use of his image in its advertising. A picture of Eddie Irvine was digitally altered by Converse Radio to show the racing driver retaining a radio which also included wording that provided the impression that he was endorsing the radio station (Lysandrides, J. , 2005). In terms of the suggested unauthorised use of an image of David Beckham then he already has a number of endorsement agreements including one with Gillette. It is likely that David Beckham's legal professionals will be able to successfully make reference to the Irvine case in the event of the unauthorized and digitally alerted use of his image in advertising for Stynx. In addition, the ASA code requires marketers to gain written agreement from those whose image it is certainly going use in advertising, especially in respect of endorsement. This applies if the image is transformed or not. Failure to adhere to this aspect of the code may lead to the involvement of the Office of Fair Trading and Ofcom according of published and broadcast adverts respectively (Cover, 2007).
Regulatory Issues
Whilst contravening rules will not incur the same potentially damaging fines as contravening the law, there are, nonetheless, serious consequences for the infringement of legislation.
The Division for Business, Venture and Regulatory Reform (BERR)
The BERR has introduced new regulations (in effect from 26 May 2008) to split down on unfair trading sales and marketing techniques. The new Laws are called the Consumer Security from Unfair Trading Regulations 2008 and they replace the Control of Misleading Advertising (Amendment) Restrictions 1988 (as amended in 2000 and 2003).
Misleading Advertisements
If the BERR considers that an advertisements misleads consumers or is ambitious or unfair to consumers, then it may refer the situation to the Advertising Benchmarks Authority (ASA) whose role is 'to ensure that adverts are legal, decent, genuine and truthful' (ASA, 2009). The ASA works this by referring problems to its Committee of Advertising Practice (Cover). The advertising codes administered by Cover contain: 'wide-ranging guidelines designed to ensure that advertising does not mislead, damage or offend. Advertisements must be socially sensible and prepared based on the principles of reasonable competition. These wide-ranging principles apply whatever the product being marketed' (ASA, 2009). So, the CAP rules are extremely explicit and it is the sources to 'misleading the consumer' and the 'rules of good competition' that are most likely to be always a cause for matter for Tyrelever.
Unfair Trading
As well as covering misleading advertising the Consumer Coverage from Unfair Trading Restrictions 2008 prohibit unfair trading procedures generally. There are some 31 specific regions of unfair trading that are encompassed by the legislation including ambitious and misleading sales procedures. Local authorities have the energy to ask Trading Benchmarks Officers to research grievances by consumers of unfair trading practises. The overall caveat for the legislation state: 'To breach a lot of the Regulations, the deceptive action or omission must cause, or be likely to cause, the average consumer to make a different transactional decision e. g. make a purchase which he would not in any other case have made' (Trading Expectations Institute, 2009). Issues from consumers about being mislead into making a purchase they could otherwise not need made scheduled to dilemma between 'Stynx' and 'Lynx' is an extremely real opportunity.
Ethical Issues
As well as legal and regulatory concerns, there are honest issue to consider. First of all, if the fact became known that Tyrelever acquired the deodorant product from South America, where it was produced using child labour (hence the knockdown price), then this could severely ruin Tyrelever's reputation. Similarly, if Tyrelever was to proceed with the prepared branding and advertising of the deodorant then, as well as legal and regulatory fines, it will be seen as an unethical and untrustworthy business that relies on misleading and illegitimate advertising to market its products. This proposed marketing campaign, by connection, will also unquestionably ruin the reputation and efficiency of other brands in the Tyrelever portfolio. More and more businesses are implementing ethical and socially accountable policies in terms with their marketing activities. The word 'ethical' has turned into a highly topical ointment and 'catchall' expression which has come to be associated with fundamentally any service or product that will not damage people or nature. Being ethical is all about value and Tyrelever would be demonstrating huge disrespect to its employees, consumers also to David Beckham if it proceeds with the marketing campaign as currently suggested.
Recommendations for a means Forward
In view of the legal, regulatory and moral pitfalls associated with the proposed marketing campaign, it is strongly recommended that an alternate way forwards is adopted. The following area of the report describes some alternate strategies that might be deployed to unveiling the Stynx brand effectively without the risks from the original idea.
The Stynx Brand
It has been proven that by deploying this brand it is highly likely that Unilever will bring and win an instance of 'transferring off' against Tyrelever. Consequently, a fresh name should be sourced for the merchandise and signed up as a brand.
Celebrity Endorsement
The threat of damaging litigation in using David Beckham's image is too high to warrant proceeding. Whether or not it were possible to persuade him to endorse the product the price of such an endorsement would be prohibitively high and definitely not affordable for Tyrelever. Although Gordon Oliver is a 'minimal league' celebrity, he has become known as 'the face' of Tyrelever through his prior vulnerability on other brands for the business. Tyrelever should honour Gordon Oliver's deal. His image can easily be digitally enhanced (along with his permission, of course) to minimise the detrimental effects of his epidermis disorder and putting on weight. The professional use of superstars in advertising has been found to measurably improve its performance. All the evidence shows that, when done appropriately, the utilization of superstars in advertising can be enormously profitable for brands. For example, the use of Jamie Oliver in Sainsbury's advertising has produced a return on investment of 27:1 in incremental earnings (IPA, 2009). Also, 13% of the prize-winners in the Institute of Professionals in Advertising's (IPA) Efficiency Prizes have used superstars as a major part with their advertising ideas. So, to improve the performance of the advertising it'll be necessary to leverage Gordon Oliver's engagement in the campaign. For instance, Tyrelever may i. Use him as a presenter at company incidents - this might necessitate a contractual amendment. ii. Get him involved in charitable work (children's charities) and se pr to generate information stories around this involvement. This may, by association, also help show that Tyrelever facilitates the rights of children and is also against child exploitation in the factories of SOUTH USA. iii. Make him the 'brand figure' of the plan (rather than have Gordon participating in himself) in the advertising by using his natural performing ability at participating in character roles. A good example of how this is spent some time working successfully is the use of Rowan Atkinson for Barclaycard (Pringle, H. , 2004) The more the movie star becomes involved with the brand and the business enterprise, then your more the buyer will build relationships the brand.
Corporate Sociable Responsibility
A programme of personnel (and star) participation in socially in charge assignments around Tyrelever's operational headquarters should be designed and implemented at the earliest opportunity. The thorough planning is outside the scope of the report and really should be considered independently. Also, Tyrelever should stop to source any longer products from countries that are known to use child labour. By doing deploying these two strategies and by using public relations techniques to promote those to stakeholders Tyrelever can commence to create a reputation as a socially and ethically responsible business.
Summary and Conclusions
This report suggests that the marketing campaign as formerly envisaged, does not proceed for the reasons detailed. By not proceeding, Tyrelever will be able to avoid almost certain litigation and legislation infringement. Both which could lead to significant financial fines and reputation harm. In addition, the original proposals have been seen to be unethical and socially irresponsible, which is harmful to Tyrelever's long term future. There is an opportunity for Tyrelever to advertise the deodorant in a legal, respectable and honest way and so not full bad of the law or the regulators. At the same time Tyrelever can enhance its reputation and leverage its sales by implementing a socially liable and ethical stance which will have incremental benefits for most of its products. -ends-
