“Beware, FAS!”: McDonald's tricks, divine shawarma, false Clooney and some street magic
Advertising ... how much of this word. It was she who gave birth to the very “clip consciousness” that radically changed us and about which we have been talking about for many years. It is she who can take the business to unprecedented heights, but it happens, leads him to huge losses and even ruin.
Over 8 years of working as a lawyer in a digital company, I understood two things that help advertisers to avoid financial and reputational losses: they need an understanding of their audience and knowledge of the laws of the Russian Federation. In my regular column “Caution, FAS!” Every month I look at the latest examples of unfair advertising, which have become the focus of attention of the antimonopoly service.
Today I propose to talk about when an advertising post can be a public offer, how they play with feelings in advertising and how world practice approaches the issue of humor in advertising campaigns.
Go!
A subsidiary of McDonald's in St. Petersburg faces a fine of 100,000 to 500,000 rubles for improper advertising of a set meal. The self-service desk ad stated that McCombo for 155 rubles includes a drink, french fries, six mackenget chips and sauce. The hungry Petersburger was just around the corner from the alluring fast food, when suddenly it turned out at the checkout: you need to buy the sauce separately for 6 rubles. That is, his image in the picture was just an element of an artistic image and was not included in the main cost.
In accordance with Part 7 of Art. 5 of the Law "On Advertising", advertising in which there is no part of the essential information on the advertised product, on the conditions for its acquisition or use is not allowed. The FAS acknowledged that the presence of sauce in the picture misled the consumer, and the requirement of an additional 6 rubles created incorrect financial expectations.
Interestingly, the presence in the announcement of the price and composition of the goods (that is, all essential conditions) can automatically re-qualify an advertisement into a public offer (part 2 of article 437 of the Civil Code of the Russian Federation). And then, in case of inaccuracy, it will be a question of consumer fraud (Article 14.7 of the Administrative Code of the Russian Federation) , which increases the initial fine by at least another 50 thousand rubles.
A real fine of 100 thousand rubles was received by Google LLC for advertising diploma writing services. Let me remind you that this ad has been banned since November 2018. So far, there have not been so many demonstrative decisions. But now the process of hunting for intellectual witches has begun at full speed.
The FAS Russia Commission established that when typing the phrase “graduate work to order”, the ads labeled “advertisement” were displayed in the Google search bar:
The agency noted that advertisements were distributed in the AdWords system after moderation. That is, technical filters did not notice the catch. At the same time, checking the correctness of ads is a joint responsibility of the advertiser, advertising producer and advertising platform. In fact, Google LLC was punished for the unrealized updating of new stop words for Russian-language contextual advertising. I guess the next in line are the owners of the sites. If they are found at all.
While some play shallowly and quietly give out other people's diplomas for their own, others openly appropriate the ideas of entire advertising campaigns. This is especially resonant in foreign practice. One of the most recent and interesting is the decision of the Israeli Supreme Court on August 7, 2019 in the cases of Nespresso and Nestle v. Espresso Club. The dispute concerned the legality of commercial advertising, which is based on a parody of a competitor’s advertising.
A bit of background. Nespresso's main ad campaign revolves around a character played by actor George Clooney. His character looks at attractive women, drives a luxury car and drinks espresso coffee. In a number of clips, he enters a coffee shop, where he catches admiring glances on himself. But, as it turns out, visitors are not attracted by his appearance, but by the choice of Nespresso coffee.
Original
This series of commercials served as the basis for advertising for Espresso Club, Nespresso's competitor in the Israeli coffee machine and accessories market. As part of the Espresso Club campaign, several advertisements have been issued in which Clooney's double appeared.
The plot of the controversial video is simple. A man who looks like a Hollywood actor, in a fashionable suit, leaves the store with a shopping bag and thinks out loud: "There is nothing better than a new espresso machine." His thoughtfulness is interrupted by a passerby young Israeli. He snaps his fingers in front of the double, saying in Hebrew: “Hey, stop talking to yourself. They’re evacuating you. ” At this moment, the hero’s car is taken away from the parking lot. “With the Espresso Club you could get the car straight home and completely free,” the guy continues. The Clooney double is surprised, he did not even hear about such an opportunity. The Israeli reproaches him: “How would you hear that if you smile at women all day and talk to yourself?” (This is a pebble in the garden of the original Nespresso advertisement). False Clooney is amazed: do not pay for delivery - it sounds like crazy nonsense. To which the Israeli replies to him again in Hebrew: “But to dress like a bridegroom to go to a coffee shop - is that not crazy?”
Israeli advertising
The forethought of the Espresso Club is off the charts. There is a headline at the beginning and end of the video: this is not George Clooney. Disclaimer occurs every time a character appears on the screen. Despite this, Nespresso claimed in the lawsuit that the advertisement offends her, damages her good name and violates the trademark.
Israeli Supreme Court dismissed Nespresso's lawsuit. The judges noted: a parody, albeit based on constructive criticism of Nespresso advertising, is still an original work with its own meaning. It falls under the definition of “fair use”. And since the Nespresso brand does not appear in the video, there is no violation of the trademark.
The most beautiful part of the decision is devoted to the refusal of illicit enrichment at the expense of someone else's idea. The judges noted: until the legislator considers it necessary to prohibit the issuance of advertising parodies, the court will not assume such an obligation. As a result of a 5-year unsuccessful dispute, the legal costs of Nespresso amounted to 170,000 shekels (a little more than 3 million rubles).
How to resolve this dispute in Russia is hard to say. On the one hand, there is article 5 of the Law on Advertising, which prohibits incorrect comparisons with competitors and the harm to their business reputation. And on the other - there is common sense and a sense of humor.
Are you sad and lonely? Attractive girl does not agree to a date? Or does a guy to whom you have very warm and tender feelings prefer to spend time with another? Of course, it's not you. Only magic can fix the situation ...
Apparently, a resident of Moscow was counting on such a target audience by placing the following advertisement:
First of all, antitrust monitors did not like unfair competition among wizards. The advertiser’s claim that he is “Magician # 1” violates the rights of other sorcerers! You see, the advantage of the service over similar offers has not been proved (clause 1 of part 3 of article 5 of the law "On Advertising").
Secondly, in the phrase “Love spell of special strength forever” the word “forever” (it would seem, what else) alerted. Based on the definition of “forever” as “for life” (S.I. Ozhegov's dictionary), UFAS makes an incredible conclusion about the “false properties of a service” (and this is a quote, Karl!):
Indeed, the possible actions of the Sign of Axius, the amulet of the Subjugation of Reason and the spell of Imperius, were not mistakenly taken into account. Their use could significantly affect the term of the love spell.
While some advertise a love spell, others offer liquidation services. In St. Petersburg, a case has been opened on charges of discrimination on the basis of sex. The reason was the unusual sense of humor of a local veterinary clinic:
Photo from the RIA Novosti website
And it seems to be clear that this is a joke. However, 87.5% of the advertising experts surveyed admitted that the slogan of the veterinarian offends human (and especially male) dignity. Advertising was considered to violate paragraph 6 of Art. 5 of the Law "On Advertising" (a ban on the use of abusive images and expressions). On my own behalf, I would also add the lack of a medical license from the veterinarian for the provision of similar services for people. But this is another article.
If the joke about castration of unfaithful husbands touched only freedom-loving Petersburgers, then a resident of Perm was able to offend the whole Perm diocese of the Russian Orthodox Church.
On the advertising poster of the cafe “Shawarma is just around the corner” was a model in the image of a saint with a halo and wings from shawarma. The girl covered her bare chest with her hands, in which she also held shawarma.
Photo from lenta.ru
“It makes no sense to be a martyr of PP when there is a divinely delicious #shawarmanzagora, where you can succumb to temptation without sin for a figure,” read the caption to the photo. After messages from the Perm diocese about the intention to contact the police for insulting the feelings of believers, the post from the page of the VKontakte institution was deleted. And rightly so: if he had been left, the institution would face a fine of up to 500 thousand rubles for using obscene images and religious symbols in advertising (part 6 of article 5 of the law "On Advertising") .
A precedent with the Russian Orthodox Church does not stop the owner of the cafe. Here, for example, another borderline photo from her Instagram community (apparently, all with the same model):
What temptation is offered to succumb here, you decide. But we must not forget: as in the case of McDonald's, all images on this poster can be recognized as a public offer. And in this case, “Combo” for french fries becomes much more interesting. It is possible without sauce.
Even more examples of unfair advertising in the opinion of the antimonopoly service in my previous issues of “Caution: FAS!” On the Rookee service blog.
Over 8 years of working as a lawyer in a digital company, I understood two things that help advertisers to avoid financial and reputational losses: they need an understanding of their audience and knowledge of the laws of the Russian Federation. In my regular column “Caution, FAS!” Every month I look at the latest examples of unfair advertising, which have become the focus of attention of the antimonopoly service.
Today I propose to talk about when an advertising post can be a public offer, how they play with feelings in advertising and how world practice approaches the issue of humor in advertising campaigns.
Go!
Half Million Sauce
A subsidiary of McDonald's in St. Petersburg faces a fine of 100,000 to 500,000 rubles for improper advertising of a set meal. The self-service desk ad stated that McCombo for 155 rubles includes a drink, french fries, six mackenget chips and sauce. The hungry Petersburger was just around the corner from the alluring fast food, when suddenly it turned out at the checkout: you need to buy the sauce separately for 6 rubles. That is, his image in the picture was just an element of an artistic image and was not included in the main cost.
“Gentlemen, this is robbery and deceit!” - a resident of the cultural capital was allegedly indignant and turned to the FAS.
In accordance with Part 7 of Art. 5 of the Law "On Advertising", advertising in which there is no part of the essential information on the advertised product, on the conditions for its acquisition or use is not allowed. The FAS acknowledged that the presence of sauce in the picture misled the consumer, and the requirement of an additional 6 rubles created incorrect financial expectations.
Interestingly, the presence in the announcement of the price and composition of the goods (that is, all essential conditions) can automatically re-qualify an advertisement into a public offer (part 2 of article 437 of the Civil Code of the Russian Federation). And then, in case of inaccuracy, it will be a question of consumer fraud (Article 14.7 of the Administrative Code of the Russian Federation) , which increases the initial fine by at least another 50 thousand rubles.
Phrase from context
A real fine of 100 thousand rubles was received by Google LLC for advertising diploma writing services. Let me remind you that this ad has been banned since November 2018. So far, there have not been so many demonstrative decisions. But now the process of hunting for intellectual witches has begun at full speed.
The FAS Russia Commission established that when typing the phrase “graduate work to order”, the ads labeled “advertisement” were displayed in the Google search bar:
The agency noted that advertisements were distributed in the AdWords system after moderation. That is, technical filters did not notice the catch. At the same time, checking the correctness of ads is a joint responsibility of the advertiser, advertising producer and advertising platform. In fact, Google LLC was punished for the unrealized updating of new stop words for Russian-language contextual advertising. I guess the next in line are the owners of the sites. If they are found at all.
Almost hollywood
While some play shallowly and quietly give out other people's diplomas for their own, others openly appropriate the ideas of entire advertising campaigns. This is especially resonant in foreign practice. One of the most recent and interesting is the decision of the Israeli Supreme Court on August 7, 2019 in the cases of Nespresso and Nestle v. Espresso Club. The dispute concerned the legality of commercial advertising, which is based on a parody of a competitor’s advertising.
A bit of background. Nespresso's main ad campaign revolves around a character played by actor George Clooney. His character looks at attractive women, drives a luxury car and drinks espresso coffee. In a number of clips, he enters a coffee shop, where he catches admiring glances on himself. But, as it turns out, visitors are not attracted by his appearance, but by the choice of Nespresso coffee.
Original
This series of commercials served as the basis for advertising for Espresso Club, Nespresso's competitor in the Israeli coffee machine and accessories market. As part of the Espresso Club campaign, several advertisements have been issued in which Clooney's double appeared.
The plot of the controversial video is simple. A man who looks like a Hollywood actor, in a fashionable suit, leaves the store with a shopping bag and thinks out loud: "There is nothing better than a new espresso machine." His thoughtfulness is interrupted by a passerby young Israeli. He snaps his fingers in front of the double, saying in Hebrew: “Hey, stop talking to yourself. They’re evacuating you. ” At this moment, the hero’s car is taken away from the parking lot. “With the Espresso Club you could get the car straight home and completely free,” the guy continues. The Clooney double is surprised, he did not even hear about such an opportunity. The Israeli reproaches him: “How would you hear that if you smile at women all day and talk to yourself?” (This is a pebble in the garden of the original Nespresso advertisement). False Clooney is amazed: do not pay for delivery - it sounds like crazy nonsense. To which the Israeli replies to him again in Hebrew: “But to dress like a bridegroom to go to a coffee shop - is that not crazy?”
Israeli advertising
The forethought of the Espresso Club is off the charts. There is a headline at the beginning and end of the video: this is not George Clooney. Disclaimer occurs every time a character appears on the screen. Despite this, Nespresso claimed in the lawsuit that the advertisement offends her, damages her good name and violates the trademark.
Israeli Supreme Court dismissed Nespresso's lawsuit. The judges noted: a parody, albeit based on constructive criticism of Nespresso advertising, is still an original work with its own meaning. It falls under the definition of “fair use”. And since the Nespresso brand does not appear in the video, there is no violation of the trademark.
The most beautiful part of the decision is devoted to the refusal of illicit enrichment at the expense of someone else's idea. The judges noted: until the legislator considers it necessary to prohibit the issuance of advertising parodies, the court will not assume such an obligation. As a result of a 5-year unsuccessful dispute, the legal costs of Nespresso amounted to 170,000 shekels (a little more than 3 million rubles).
How to resolve this dispute in Russia is hard to say. On the one hand, there is article 5 of the Law on Advertising, which prohibits incorrect comparisons with competitors and the harm to their business reputation. And on the other - there is common sense and a sense of humor.
Magic and its consequences
Are you sad and lonely? Attractive girl does not agree to a date? Or does a guy to whom you have very warm and tender feelings prefer to spend time with another? Of course, it's not you. Only magic can fix the situation ...
Apparently, a resident of Moscow was counting on such a target audience by placing the following advertisement:
"Ilya N. German - magician number 1.Looking ahead, I will say that this announcement was declared illegal. Naturally, you think, this is some kind of fraud. However, the grounds for the decision of the OFAS of Moscow cause mixed feelings of embarrassment and surprise.
Spell of special power forever; I will completely subordinate to you a loved one, I will break off relations with an opponent. Overcoming the crisis: setting copyright code for good luck. Impact on the enemy and protection.
GUARANTEED I WILL SOLVE THE PROBLEMS OF THOSE WHO OTHER SPECIALISTS WOULD NOT HELP. ”
First of all, antitrust monitors did not like unfair competition among wizards. The advertiser’s claim that he is “Magician # 1” violates the rights of other sorcerers! You see, the advantage of the service over similar offers has not been proved (clause 1 of part 3 of article 5 of the law "On Advertising").
Secondly, in the phrase “Love spell of special strength forever” the word “forever” (it would seem, what else) alerted. Based on the definition of “forever” as “for life” (S.I. Ozhegov's dictionary), UFAS makes an incredible conclusion about the “false properties of a service” (and this is a quote, Karl!):
Indeed, the possible actions of the Sign of Axius, the amulet of the Subjugation of Reason and the spell of Imperius, were not mistakenly taken into account. Their use could significantly affect the term of the love spell.
While some advertise a love spell, others offer liquidation services. In St. Petersburg, a case has been opened on charges of discrimination on the basis of sex. The reason was the unusual sense of humor of a local veterinary clinic:
Photo from the RIA Novosti website
And it seems to be clear that this is a joke. However, 87.5% of the advertising experts surveyed admitted that the slogan of the veterinarian offends human (and especially male) dignity. Advertising was considered to violate paragraph 6 of Art. 5 of the Law "On Advertising" (a ban on the use of abusive images and expressions). On my own behalf, I would also add the lack of a medical license from the veterinarian for the provision of similar services for people. But this is another article.
The temptation of shawarma
If the joke about castration of unfaithful husbands touched only freedom-loving Petersburgers, then a resident of Perm was able to offend the whole Perm diocese of the Russian Orthodox Church.
On the advertising poster of the cafe “Shawarma is just around the corner” was a model in the image of a saint with a halo and wings from shawarma. The girl covered her bare chest with her hands, in which she also held shawarma.
Photo from lenta.ru
“It makes no sense to be a martyr of PP when there is a divinely delicious #shawarmanzagora, where you can succumb to temptation without sin for a figure,” read the caption to the photo. After messages from the Perm diocese about the intention to contact the police for insulting the feelings of believers, the post from the page of the VKontakte institution was deleted. And rightly so: if he had been left, the institution would face a fine of up to 500 thousand rubles for using obscene images and religious symbols in advertising (part 6 of article 5 of the law "On Advertising") .
A precedent with the Russian Orthodox Church does not stop the owner of the cafe. Here, for example, another borderline photo from her Instagram community (apparently, all with the same model):
What temptation is offered to succumb here, you decide. But we must not forget: as in the case of McDonald's, all images on this poster can be recognized as a public offer. And in this case, “Combo” for french fries becomes much more interesting. It is possible without sauce.
Even more examples of unfair advertising in the opinion of the antimonopoly service in my previous issues of “Caution: FAS!” On the Rookee service blog.
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