Advertising Law Alerts

May 27th, 2015

All in a Name: NAD Recommends Advertiser Change Product Names - Even Absent Consumer Confusion

Unilever United States, Inc. recently challenged certain Vogue, International, Inc. shampoo product names. NAD determined that Vogue's product names, such as Renewing Argan Oil of Morocco Shampoo and Nourishing Coconut Milk Shampoo, touted the inclusion of certain "exotic" ingredients but that those ingredients did not provide the benefit also touted in the product name. As a result, Vogue will have to change the names of several of its OXG shampoo products. This is not a recommendation that NAD often makes and its willingness to do so in the absence of extrinsic evidence of consumer confusion is unusual and presents a teaching moment for advertisers and their agencies. Here's what happened.

The challenge. Unilever argued that Vogue's OXG product names linked exotic ingredients together with performance claims "in a manner which implie[d] that the ingredient [was] present in the product at a level that provides the benefit." Unilever relied on tests showing the OXG products contained an insufficient amount of the exotic ingredients to provide the touted benefits. Unilever also submitted an internal consumer perception study in which over 40% of respondents said that the OXG product packaging conveyed the message that the touted ingredient was included in amounts sufficient to provide the benefit being touted (e.g., "renewing", "hydrating", "nourishing").

The findings. While the NAD did not credit Unilever's perception survey, it nonetheless concluded - on its own judgment - that the product names conveyed that the ingredients provided the touted benefits. Moreover, NAD concluded that Vogue could not demonstrate that the ingredient being touted provided the benefit linked to it. Accordingly, NAD recommended that Vogue change the product names to avoid tying the touted ingredients to specific performance benefits.

The takeaway. Interestingly, the names NAD suggested to the advertiser did not differ materially from the names originally used. For example, NAD suggested changing "Renewing Argan Oil of Morocco Shampoo" to "Renewing Shampoo with Argan Oil," and changing "Nourishing Coconut Milk Shampoo" to "Nourishing Shampoo with Coconut Milk." This suggests to us that an advertiser may still tout an ingredient in its product - including in the product name - even if the ingredient does not provide a specific functional benefit. But take care: an advertiser who features an ingredient in the product name must not imply that the ingredient provides that benefit. In the Unilever - Vogue matter, separating the name of the ingredient from the touted benefit apparently made the new product name more acceptable to the NAD.

Advertisers would do well to analyze their product names in light of this important decision, and to do so before new products roll out.

If you have questions about product names, competitor challenges before the NAD, or other advertising compliance questions, contact Terri Seligman at (212) 826-5580 or tseligman@fkks.com, or any other member of the Frankfurt Kurnit Advertising Group.