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'It's About What's Right'

We all know what a strapline is – they’re usually the last line of any advertisement on televised ads and the internet... but what are they beyond a company’s attempt to be memorable? Are they to be taken seriously? Do they form part of a contractual offer on the part of the company about their products and services?

In 2014, Red Bull discovered that a poorly thought strapline can be an expensive mistake when they were taken to court over their strapline “Red Bull Gives You Wings”. At the Lawyer and the Nurse, we settled on a strapline that reflected a phrase that many people who are pursuing NHS Continuing Healthcare Funding or assistance with their child’s SEN requirements had said to us – “It’s About What’s Right”. It encapsulates the very core of our approach to our work.

So what flows from this? Well – we think the phrase reflects our intent to see that which ought to be done, actually done. It speaks to our determination to ensure that decisions taken on anything but a fair and legal basis are appropriately challenged and overturned. The denial of funding is so often the NHS, DWP, etc, trying to save money when it should be providing funding for those who - in many cases - have paid into the system all their lives. It also reflects our commitment to forthright advice and frankness when it comes to the assessment of clients’ applications for public funding or benefits. Unlike some firms, we will never encourage applications that we clearly believe will be unsuccessful simply so that we can bill for services. So that’s us and our strapline, and we are – unlike Red Bull – happy to be held accountable on the basis of it.

So, returning to the Red Bull case; in 2014 the beverage giant settled a group action bought by customers who claimed that the “Gives You Wings” strapline was misleading – sounds bonkers, but the force of the argument was that the strapline implied that by drinking the ‘energy drink’ you would gain an ‘edge’ either physically, mentally, or academically. Alternatively, it was thought to be implying that there would be enhanced performance in some area of life if you drink the caffeine, sugar, and taurine concoction. They settled out of Court in the sum of $13,000,000! In settling the company issued a statement:

“Red Bull settled the lawsuit to avoid the cost and distraction of litigation. However, Red Bull maintains that its marketing and labelling have always been truthful and accurate, and denies any and all wrongdoing or liability.”

…If you say so Red Bull, but it sounds to me like another type of Bull.

Now the case was in the U.S, and has had little impact on contract law in the UK. Indeed as the matter was settled out of court, I suspect it has no impact on case law in the U.S – but the settlement does make you think... who else could be at risk? Could one issue a claim against McDonald’s if you’re not “Lovin’ it”? Does Carlsberg have the most sensible and risk-averse marketing department of all companies with their “probably the best lager in the world”? Would it be possible to make a claim for personal injury if you hurt yourself ‘just do[ing] it’ in Nikes?

The case raises an area of contract law that has a long history in the English and Welsh courts – is it possible to contract with the world at large through an advert? The short answer is ‘yes’, but for those wanting to know more about this area of law, a good place to start is with the case of Carlill v Carbolic Smoke Ball Company (1893) – One of the first cases taught in the study of contract. Meanwhile, I am off to put 'Vorsprung Durch Technik' through Google translate to see if I have a good case against Audi.


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