One way to succeed in business is to build a better mousetrap. An alternative is to get a movie star or an All Black to make an ad telling the world that your mousetrap is totally awesome.

A third option is to pretend that every celebrity in the world thinks your mousetrap is the best thing they ever bought. You get to have it both ways then: you get the star power leverage and you get to make a joke along the lines of: “We don’t have the budget for all these stars but here’s what we’ve photoshopped for your entertainment. By the way please click this link for a free trial of our killer mousetrap.”

A couple of campaigns in recent years have tried this approach and earned plenty of laughs and attention. But one of them has also found itself in the weeds with legal problems, and offers a useful reminder about the rules on false advertising.

In the UK, SURREAL brand cereal has just run a very witty ad campaign purporting to offer endorsements from a galaxy of celebs such as Serena Williams, Michael Jordan, Ronaldo, and Dwayne Johnson, but also offering a big asterisk and disclaimer to make it clear it’s all tongue in cheek. 

It was a huge viral hit, winning hearts on social media and potentially, new customers. But 102k likes and a few days on, it appears the big asterisk and disclaimer were insufficient to satisfy the IP lawyers and the campaign has seemingly been revised.

The campaign is reminiscent of the one Skinny Mobile ran in 2018 called Famous Names. It showed ordinary New Zealanders called Ben Affleck, Julia Roberts, Michael Jordan, Clint Eastwood, and Sarah Jessica Parker amongst others.

It too, made it plain that none of the actual celebs of those names were involved and, it’s probably fair to say, left less room for doubt or confusion.

It can make a great joke, but if you want to stay on the right side of the law, you need to remain mindful that in New Zealand, there is no ‘parody’ defence to false advertising or IP infringement. It doesn’t matter how funny you are – it’s not a get out of jail free card.

The somewhat sober and unamusing test you’ll need to satisfy is: is there a likelihood that a substantial number of the relevant purchasing public will be misled or deceived by an ad? If the answer is yes, then the ad breaches the Fair Trading Act. 

Competitors can use the Act against each other even if the Commerce Commission chooses not to investigate. Advertising Standards come into it too and can cause a practical problem if a complaint about advertising is upheld by the Advertising Standards Association.

There could a be trade mark issue too, if a celebrity has registered their name as a trade mark in New Zealand. We recently prevented an individual from registering AUNTY HELEN as a trade mark for publishing and related services. The IP Office agreed the trade mark had been applied for in bad faith and use of it was likely to confuse or deceive people.

Asterisks don’t always save you from misleading people – it all depends on the context.

Using famous names can be a clever trick when it’s done carefully, but there’s a fine line.

Final word to the wise – SURREAL’s cheeky repositioning of its campaign said ‘OUR LAWYERS WROTE THESE ADS’ and ‘They had some feedback about the last ones.’  It often adds to the fun to bring lawyers into the frame in situations like this. But if you do end up being sued, you may live to regret that thanks to a rule called ‘waiver of privilege’. That’s a rule that says if you don’t keep your legal advice confidential, you may end up having to share ALL the legal advice you got with your opponent. Including the part where they told you ‘This is a risky campaign. But damn funny.’