Avoid legal risks when pushing the boundaries of brands

Managing IP is part of Legal Benchmarking Limited, 1-2 Paris Gardens, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2025

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Avoid legal risks when pushing the boundaries of brands

Sponsored by

twobirds-400px.jpg
big-ben-2393098.jpg

Emma Green of Bird & Bird provides four tips on successfully embracing environmental, social and governance (ESG) values in branding in the UK

Long gone are the days when ESG was a tick box exercise: operating a successful brand in today’s social climate means having a strong ethos, clear principles and even a drive to inspire change.

However, getting the attention of your audience can carry legal risks. Brands need to exercise caution to ensure the headlines they are making are the right ones and to avoid going viral for all the wrong reasons. Four key considerations are:

1. Use of third-party brands carries infringement risk:

Advertising to inspire activism usually means the content needs to be provocative. The temptation to call out big brands on their failures can be significant, especially for growth-stage challenger brands or competitors who think they are doing a better job. However, commercial use of a third-party brand name or logo that is registered as a trademark in relation to the same goods or services is, most likely, still going to be an infringement.

In the absence of registered rights, such use may also be an actionable passing off in the UK. This triggers a significant risk of legal action, in particular injunctive relief to stop such use, regardless of the length of the campaign or how honourable the motivation.

Costs awards for the losing party can be significant, with liability arising for the other side’s costs as a minimum. Take specialised legal advice on any particularly incendiary advertising to avoid campaigns backfiring in unwanted public relations and legal costs.

2. Be mindful of the regulatory environment:

Doing good does not give brands carte blanche on the statements they make. In the UK, the Advertising Standards Agency (ASA) supports the legislative framework and regulates comparative advertising claims and adverts targeted at specific demographics. It also enforces the prohibition on political advertising under the Communications Act 2003.

The ASA has the power to ban adverts and seek amendments to claims, and can even apply pressure to have advertising space revoked and request that search engines discontinue paid-for ads or display a notice when someone searches for the sanctioned brand.

3. Substantiate claims:

Promoting a specific value of your brand can generate consumer interest but those claims need to stand up to scrutiny. Avoid the temptation to exaggerate: do you have evidence to support the claim you want to make, is it sufficiently objective, and is it free from misleading statements?

Particularly topical is the field of sustainability: allegations of greenwashing can quickly undermine the good work a brand is actually doing to improve its ecological credentials, so make sure claims can be supported.

4. Exercise caution with partners:

Working with third parties and influencers can help push a brand message to a new audience. Draw up a clear framework on permitted statements and agree on any topics and messaging which is off limits.

In the current cancel culture climate, a faux pas with one partner can have a significant knock-on impact with other sponsors or clients, so choose collaborations wisely and make sure contracts are in place to document each side’s responsibilities.

more from across site and SHARED ros bottom lb

More from across our site

Moore & Van Allen hires former Teva counsel Larry Rickles to help expand the firm’s life sciences capabilities
Canadian law firms should avoid ‘tunnel vision’ as exclusive survey reveals client dissatisfaction with risk management advice and value-added services
In major recent developments, the CoA ruled on director liability for patent infringement, and Nokia targeted Paramount at the UPC and in Germany
Niri Shan, the newly appointed head of IP for UK, Ireland and the Middle East, explains why the firm’s international setup has brought UPC success, and addresses German partner departures
Vlad Stanese joins our ‘Five minutes with’ series to discuss potentially precedent-setting trademark and copyright cases and his love for aviation
Heath Hoglund, president of Via LA, discusses how it sets royalty rates and its plans to build on growth in China
Stobbs stands accused of interfering with the administration of justice after Brandsmiths’ client was subjected to an interim injunction for unjustified threats
The firm, known for its prosecution expertise, discusses its plans following the appointment of a UK-based patent litigation head and two new partners
Ed White at Clarivate provides an exclusive insight into the innovation power clusters reshaping Europe and the Middle East’s IP landscape, and why quality is the new currency of invention
In the first in a new podcast series celebrating the tenth anniversary of IP Inclusive, we look back at the network’s origins and discuss its mission
Gift this article