Amongst the changes are the following:

• More consistency between the CAP Code and BCAP Code, such as for misleading advertising, harm and offence
• The Codes are intended to be simple, user-friendly and joined-up.
• Television and radio advertising need to have regard to social responsibility to the audience and society as a whole.
• A prohibition on collecting data from under 12 year-old children without the consent of their parents or guardian. In addition, information cannot be collected from under 16 year-olds about other people.
• Further clarification over how to use the word ‘free’.
• A prohibition on advertisers from exaggerating any environmental benefits. Absolute claims of green credentials must be supported by a high level of substantiation. Meanwhile, comparable claims such as ‘greener’ or ‘friendlier’ must be justifiable on the basis of the total environmental impact over the previous range or the competitor’s product. The environmental claims must be measured over the full lifecycle of the product. As with other ads, the green qualities must not mislead.

In the High Court action, the Court threw out the defendant’s argument that it was simply using its ‘own name’. Although there was an ‘own name’ defence that could apply to companies as well as to individuals, the defendant did not use its full company name (apart from the ‘Ltd’ bit) as it was required to do to take advantage of this defence but it instead used a much shorter version of its name. In any event, the Court said that its use had not been ‘in accordance with honest practices in industrial and commercial matters’ as it should have known of the existing registered trade mark when starting up.

On appeal, the Court of Appeal has agreed with the High Court ruling, but not with all of its findings. The Court of Appeal said that a company could claim that its trading name benefited from the ‘own name’ defence. Whether it was the company name or trading name, though, the position had to be that the use was in accordance with honest practices. The right to use one’s own name was not an absolute right. Much depended on the trading name adopted and in what circumstances it had been adopted. In this particular case, the use of the same name as the already established brand did not amount to honest practices as the infringer did not already have concurrent rights in the name, so the ‘own name’ defence was thrown out.