Brand identity and advertising during a pandemic

The Advertising Standards Authority (ASA), responsible for the UK's self-regulatory system, has taken measures to prevent ads that exploit or mislead consumers during the chaos of the crisis.

In March, it issued a statement detailing its approach to enforcement. It accepted that this is a very challenging time for many businesses, and so it will not be taking a heavy-handed approach in certain circumstances. Instead, it has adopted a more advisory approach where the issue is relatively minor or which could not have been reasonably foreseen, for example, in relation to a lack of product availability. However, the ASA also explained that taking a lighter touch in some areas of work will mean it can act rapidly and firmly in cases where people's concerns and fears over COVID-19 are being exploited by advertisers. This includes actively monitoring the market, to ensure that it deals with any ads attempting to take advantage of consumers.

Indeed, the ASA has already published seven COVID-19-related rulings on ads that breached the ASA's code. These include ads for facemasks claiming they could protect wearers against the infection. For further information, the ASA has published guidance on responsible advertising relating to COVID-19. It has also issued guidance in the specific context of gambling advertising during the lockdown period. 

Several social media platforms including Facebook, Instagram, Twitter and YouTube have committed to restricting content relating to COVID-19 that is perceived to be fraudulent or misleading, including blocking hashtags. Twitter, for example, has issued a prohibition on sensationalised content or distasteful references as well as the advertising of facemasks and hand sanitisers. Up-to-date guidance is available via its blog.

Whilst moderation has relaxed since the pandemic first started, brand owners should remain cautious about any references to the virus in their advertising and ensure such references are not likely to result in those posts being taken down or blocked. 

Brands have been introducing all manners of creative promotional strategies. Here are just a few examples:

Restaurants and cafes have been releasing recipes for you to make at home. Greggs has launched its own DIY baking tutorials – coined as GIY (Greggs It Yourself). IKEA has brought some light humour whilst reinforcing its brand identity by releasing the recipe for its iconic meatballs with a classic “flatpack” set of instructions.

Other brands are using their manufacturing capabilities to produce new products, including protective equipment and hand sanitisers. Fashion brands Chanel and Burberry are doing their part with Chanel manufacturing facemasks in France, while Burberry is funding research into a vaccine developed by the University of Oxford. Luxury goods conglomerate LVMH is also converting its perfume factories to produce hand sanitiser.

British craft beer maker BrewDog has also converted some of its production capacity to focus on producing hand sanitisers, packing & donating over 50,000 units to the NHS and local charities, branding the sanitisers as ‘Brewgel and ‘Punk Sanitiser’. Following criticism in some areas of exploiting the current situation, a tweet from founder, James Watt, clarified that the hand sanitiser was not created to be sold, but will be given away to those who need it. Here lies the delicate balance.

Businesses moving into personal protective equipment (PPE) production should be aware there are a number of regulatory requirements, see our previous article regarding Pivoting to PPE manufacture.

Other companies have used the power of their brand to reinforce health messages. A prime example of this was some brands' responses to the social distancing measures. Brands across all industries have used this time to create innovative logos that nod to the social distancing rules.

Coca-Cola took the opportunity to use its iconic billboard in Times Square in New York to spread the social distancing message by featuring its famous Coca-Cola sign with increased spacing between each of the letters. McDonald’s also posted an amended logo on Facebook in which it separated the iconic ‘golden arches’.

In the motor industry, Audi posted a video on Twitter in which the four interwoven rings that make up their logo slowly separate from one another. Volkswagen also redesigned its logo in which the V and W were further apart in the circle.

Sportswear brand Kappa has temporarily separated the people shown in its logo so they are sitting further apart, using the adapted logo as its profile picture on Instagram.

Media company TimeOut has taken a slightly different approach showing an amended logo on its website in which the word “Out” is struck through and replaced with the word “In”.

Any time you create a new logo, it is generally advisable to conduct trade mark clearance searches to ensure there are no serious obstacles to your use arising from third parties with earlier rights in a similar mark. In the case of an adapted mark like those above, the risk of infringing any third party rights is probably minimal unless new elements are included or there is a substantially different emphasis in the design. It is also unlikely that a temporary move to an amended logo will affect the validity of your main logo. Trade marks in the UK and EU become vulnerable to cancellation if they are not put to genuine use for a continuous period of 5 years. Therefore, a temporary move to an adapted mark that nods to the current pandemic is unlikely to get close to this kind of timeline. It could also be an opportunity to demonstrate exclusive rights and recognition in particular elements of your logo.

Some brand owners may consider the merits of applying to register their altered mark as a trade mark. A registration grants exclusivity, is helpful for enforcement, and also acts as a useful deterrent. However, if it is hard to see other uses for the mark beyond the current environment, then using resources on registration may not be worthwhile and instead copyright could be relied upon. Copyright for an original work arises automatically on creation and can be enforced internationally but many brands in the UK, both large and small, miss out on the opportunity of ownership by not ensuring that there is an assignment in place when the creator of the new copyright work is not an employee. Copyright can also be used to challenge the validity of a trade mark registration so it should be secured whether or not it is solely relied upon.

There are clearly some opportunities as well as risks in opting for an agile approach to branding, and marketing and legal teams should be working together closely to optimise the value of marketing activity from an IP perspective.

There is a real opportunity for advertisers to empathise with their customer base and show what they are doing to help, but brands need to be careful to strike the right tone and not come across as taking advantage of the situation or potentially mislead consumers. Clearly, this requires a careful balancing act. From a trade mark perspective, new logos provide new opportunities to create and demonstrate brand value but may also unintentionally infringe third party rights.