The Legal and Ethical Issues

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Introduction

According to Mintel, the total UK market for deodorants was estimated at £459 million in 2008. Unilever’s ‘Lynx’ brand for men had estimated sales of £92 million during the same period giving it a market share of 20% (Bainbridge, J., 2009) Tyrelever Cosmetics has recently acquired a stock of low cost deodorant for men from South America. The proposal is to rebrand this deodorant and market it through retail outlets in the UK under the brand name ‘Stynx’. It also proposed to use a celebrity endorsement within the product advertising. Tyrelever’s current contracted celebrity, Gordon Oliver, is not considered suitable for this role and the proposal is that an altered image of the footballer David Beckham be used to endorse the product. The product branding and celebrity endorsement strategies are designed to take market share from the Lynx brand and thus establish Stynx as a credible male deodorant brand in its own right. By adopting this strategy and by pricing the product competitively, Stynx expects to make a significant return on its original investment.

Objective of the Report

This report identifies and critically examines the legal, regulatory and ethical issues associated with the proposals outlined in section 1.0 above. In the light of this analysis the report also makes recommendations as to how the advertising of the proposed ‘Stynx’ brand should proceed and how that advertising can be supported and leveraged by deploying additional marketing strategies.

Legal Issues

There are a number of legal issues that can affect the nature and content of advertisements as well as the use of celebrities within advertisements. If an advertiser creates an advertisement that is misleading, it may be unlawful in a number of different ways. It may, for example, constitute ‘a malicious falsehood’ or ‘infringe a registered trademark’. A trademark is defined as ‘a distinctive design, picture, emblem, logo or wording (or combination) affixed to goods for sale to identify the manufacturer as the source of the product and to distinguish them from goods sold or made by others’ (Hill G.N. et al., 2005). The Lynx name is a registered trademark of the Unilever Group (Unilever, 2009) and, as such, it is capable of being infringed by another product that attempts to ‘pass off’ its brand name as the Lynx brand.

The Law of ‘Passing Off’

The law of ‘passing off’ is a common law tort that has been created by the judiciary. It relates to a misrepresentation made by one business which damages the goodwill of another business. Typically, this will involve passing off the goods or services of one business as those of another. In most cases businesses will have protectable rights under the law of passing off in relation to trade marks, brand names, slogans and other elements of advertising in which they have accrued goodwill (Ali, I., 2005). There is a distinct probability that the proposed ‘Stynx’ brand name will be seen as ‘passing off’

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