Everybody loves a good deal, especially after they spend their life savings on Christmas presents. This gives you an opportunity to start a daily deals website promoting the best deals around. You do your research, sign up for alerts and make friends with all the right people. But then you think, ‘am I allowed to advertise other brands on my website?’ This article explores what you can and cannot do when advertising other businesses on your daily deals website.

Avoid False and Misleading Statements

The Australian Consumer Law (ACL) states that you cannot make any false, misleading or deceptive claims to influence purchases. If you are considering advertising other brands to try and become the next Scoopon, it is a good idea to be familiar with your responsibilities under the ACL. Chiefly, you must not:

  1. engage in conduct that is misleading or deceptive or is likely to mislead or deceive; or
  2. make any false or misleading representation about goods or services.

Displaying other brands on your website blurs the line between innocent promotion and false representation. You may hear about a good deal at Apple and just want to share it with the world. But your advertisements could be seen as though you have an affiliation with Apple. This would be false.

Determining whether a representation or advertisement is considered false or misleading will depend on the circumstances of each situation. Consider the following factors to decide whether your representations could be misleading consumers:

Advertising Factor How to Avoid Misleading Representations
The general impression of your website and advertisements Does your wording sound like you are a fellow consumer passing on information or does it look like you are being paid for advertising?
Your audience When considering the average consumer’s impression, think about your audience. Are your products targeted at highly sophisticated businesses or just average consumers?
Compensation you received for promotions Using the phrase, ‘sponsored content’, clearly indicates the nature of the relationship.

 

However, it is irrelevant how innocent your intentions are or even that you did not mislead anyone. If the conduct can be seen as being likely to mislead or deceive someone, you may still breach the ACL.

Using Trade Marks Appropriately

Trade marks may be names, logos, slogans. For example, both the Apple logo and the name ‘iPhone’ are registered trade marks of Apple. A business has exclusive rights to use its registered trade marks. Therefore, you need to consider whether you are infringing on trade marks when you advertise other brands on your website.

Infringement may occur when you are representing the products as coming from you. For example, if you had a page that said ‘Apple’s Deals’, that may give the false impression that Apple had authorised you to promote deals on their behalf.

Consider the following factors when arranging your website:

Factor Influencing Trade Mark Use How to Avoid Infringement
Size Use smaller versions of trade marks to give off the impression that the trade mark is only associated with the deal and not your business. If Apple’s logo is bigger than your own, it would more likely constitute trade mark infringement.
Placement Do not put others’ trade marks higher on the page than your own. Make sure it is clear that your business name is the heading of the page.
Links Using links to the business’ website would indicate that you are merely advertising the brand rather than assuming it as your own.

 

Credit Others When Possible

Lastly, consider whether the business’ you are promoting on your daily deals website will allow you to do so. The most conservative approach is to seek permission from each brand before advertising their deals. But, in reality, is Apple really going to respond to your email? And, more importantly, if you are promoting their products and potentially increasing their sales, are they going to care? Probably not.

To keep yourself in the clear, and to keep the big boys happy, follow three suggestions:

  1. Credit the brand properly. Do not just display an iPhone deal, make sure it is clear that Apple is providing the discount on their iPhones.
  2. Avoid puffery. Do not exaggerate the deals or fabricate the truth. You do not want consumers complaining to Apple that the iPhone lacked features that you advertised on your website.
  3. Include all the terms and conditions when necessary. If Apple is offering a 10% discount but only when you purchase an iPad, make sure you include that disclaimer.

Key Takeaways

When advertising other brands on your daily deals website, you have to ensure you do not mislead consumers or use trade marks inappropriately. First, always speak the truth and think about the overall impression you give. Do not try to hide important information that would otherwise influence a consumer. Secondly, think about the other businesses you are promoting. Put yourself in their shoes and consider whether your conduct would negatively affect their business.

If you need assistance with ensuring that your daily deals website promotes other brands legally, call LegalVision’s advertising compliance lawyers on 1300 544 755 or fill out the form on this page.

Alexandra Shaw
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