Advertisment
A press advertisement promoting Specsavers audiology service and hearing aids featured the Specsavers logo and stated:
“We’re putting the awe into audiology
New hidden hearing aids that connect to your phone.
From €1,795 a pair with PRSI.
To book a free hearing test call 1800 932 855 or visit specsavers.ie/hearing
PRSI subject to availability. Funded by the Department of Employment Affairs and Social Protection. Refers to ReSound Wireless LiNX Quattro hearing aids only. Subject to suitability and availability.”.
A radio advertisement for the campaign depicted the following scenario:
“Doctor: What’s this? A super-glue accident? His hands are completely stuck to his face…
Nurse: I wish it were that simple, doctor, but he’s totally gob-smacked. Look, when you pull his hands away…
SFX: Smack!
Nurse: …they slap right back into his face again.
Doctor: Don’t tell me – he was at Specsavers trying those new hidden hearing aids that connect to your phone?
Nurse: That’s right.
Doctor: (sigh) That’s the fiftieth case this week…
VO: At Specsavers, we’re putting the awe into audiology with new ReSound Wireless LiNX Quattro hearing aids from €1,795 a pair with PRSI. Subject to availability. Ask in store for details.”
Complaint
Hidden Hearing considered the advertisements to be misleading due to the use of the term “hidden hearing aids” which they believed could cause confusion amongst their customers, a potentially vulnerable audience. They said that a recent study identified that there was a 68% brand awareness of the name ‘Hidden Hearing’ amongst those interested in the provision of hearing aids, i.e. the group that were targeted by the relevant advertisements. The complainant believed the advertisements inferred that Specsavers offered Hidden Hearing hearing aids.
They considered that by using the words ‘hidden hearing’ in this context the advertisers had implied some association with Hidden Hearing which did not exist, an action which they believed created an unfair commercial advantage for the advertisers.
Response
The advertisers said that they did not accept there was any basis for the concerns cited by Hidden Hearing, which they said took no account of the descriptive context in which the words “hidden hearing” were used. They said that they believed Hidden Hearing had focussed on the use of these two words in isolation without considering the advertisement as a whole. For these reasons, they said, they felt it was important to explain the background of this campaign before addressing the specific concerns of Hidden Hearing and the compliance of the advertisement with the Code sections highlighted by the ASAI Executive.
They explained that the campaign related to the launch of a new hearing aid product offered by Specsavers, ‘ReSound Wireless LiNX Quattro’ hearing aids. This product, they said, was specifically identified in both the newspaper and radio advertisements and was not sold by Hidden Hearing. They said that the use of the words ‘hidden hearing’ was as part of a broader statement which described this new product, i.e. “new hidden hearing aids that connect to your phone”. They said that this statement was intended to capture two features of hearing aid products that are important to consumers – visibility (hence the reference to the hearing aids being “hidden”) and connectivity (hence the reference to them “connecting to your phone”). The importance of these features to customers, they said, was supported by market data. They cited a 2019 survey conducted by Kantar (1) which found that 32% of customers who were diagnosed as requiring, but did not wear, hearing aids, responded that they did not do so as they believed hearing aids looked unappealing, and a further 24% responded by saying that they didn’t look discreet.
Specsavers advised that they had previously used the word ‘invisible’ in certain marketing communications to describe some of its hearing aid products, i.e. Completely in the Canal (CIC) products. However, they said, this would not have been suitable for this product as, while it was still regarded as an invisible aid by the industry, it had a slightly more obvious exterior; therefore, the term ‘hidden’ was used to ensure there was no risk of customers being misled.
Regarding Hidden Hearing’s specific concerns and the campaign’s compliance with the relevant Code sections, they said that they did not accept that the use of the words ‘hidden hearing’ in the descriptive manner explained above was in any way misleading or confusing to consumers as per Section 4.1 of the Code, nor did they consider it exploited the inexperience of consumers as per Section 4.4 or closely resembled any marketing communications by Hidden Hearing as per Section 4.36.
They said the advertisements did not make any use whatsoever of Hidden Hearing’s trademark or any goodwill attached to its trade name, and that the use of the words ‘hidden hearing’ was purely descriptive and was carried out in accordance with fair and honest commercial practices. They said that they noted the EU Trade Mark Regulations (2) specifically provide that an EU trade mark holder is not entitled to prohibit third parties from using “signs or indications which are not distinctive or which concern the kind, quality, intended purpose, […] or other characteristics of the goods or services” where such use is in accordance with “honest practices in the industry or commercial matters.” They said they believed that the use of the words ‘hidden hearing’ in the campaign clearly fulfilled these criteria.
They said that Specsavers did not intend to pass itself off as having any association with Hidden Hearing and they did not believe there was any basis for suggesting that they did so. They said there would be absolutely no commercial advantage to Specsavers implying it had an association with a key market competitor or that it supplied the same product as Hidden Hearing. They said that Specsavers have been providing audiology services to Irish customers since 2006 and, alongside Hidden Hearing, was also established as a key provider of hearing aids in the Irish market.
Footnotes:
(1) Kantar TNS, 2019 ‘Specsavers – Audiology Summit’
(2) https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32017R1001&from=EN
Conclusion
Complaint Not upheld.
The Complaints Committee considered the detail of the complaint and the advertisers’ response. They noted the level of brand awareness among Hidden Hearing’s target audience and acknowledged the complainant’s concerns.
They considered, however, that the words ‘hidden hearing aids’ were used in a wider context as a reasonable description of the product being promoted. They did not believe the advertisement resembled a Hidden Hearing advertisement and considered it clear that the purpose of the marketing communication was to promote Specsavers’ audiology service and products.
In the press advertising, the Committee considered that it was immediately clear it was a Specsavers advertisement.
In the radio advertising, the word Specsavers was said just before the reference to “trying those new hidden hearing aids…”.
The Committee did not consider that a consumer would be misled into thinking the advertisement was promoting a Hidden Hearing product or that the advertisers were affiliated with Hidden Hearing.
In the circumstances the Committee did not consider that the advertising was in breach of the Code.
ACTION REQUIRED:
No action required in relation to this advertising. Nevertheless, the Committee urged caution with any development of the creativity so as to avoid inappropriately leveraging another company’s brand name.
