Brand misuse can cause serious financial and reputational harm, as well as undermining the legitimate market for the goods or services in question.

One form of brand ‘misuse’ occurs where digital advertising is placed on undesirable websites. Adverts are placed by marketing affiliates and/or advertising networks but brands do not always have visibility as to where the ads are appearing. The issue has courted significant media attention, with particular concerns being raised about the use of programmatic trading – which uses automated processes for the buying and selling of online advertising.

This issue is also pertinent for gambling operators from both a legal and British licensing perspective. In 2016, the British Gambling Commission sought views on whether gambling operators licensed by it should take more responsibility for ensuring that digital advertisements do not appear on piracy websites. Following that consultation, licence condition 16.1.1 was introduced, requiring that licensees must “ensure that they do not place digital advertisements on websites providing unauthorised access to copyright content”, and that they must take all reasonable steps to ensure that their contracted third parties do not do the same. In the event that the third party does not comply, the licensee is obliged to terminate its contact with that party.

This licensing condition raises the question of how gambling operators can ensure that their brand is not being advertised on a copyright infringing site. This is especially so in an online environment, where there are many thousands of websites that make available pirated content; and where the adverts that are served are in many cases tailored to the particular users’ internet usage profile.

A study recently undertaken by Incopro looked at the placement of adverts relating to five popular UK gambling brands.

Incopro looked at advertising with two different user profiles. First, a ‘clean profile’ was used to represent the advertisements a generic internet user is likely to see. Second, a ‘gambling profile’ was used to represent an internet user who is interested in online gaming/gambling.

The graph shows a 26.3% difference in the levels of gambling advertisements served to the targeted user profile as compared to the ‘clean’ user profile. Overall, these findings show that gambling advertising is still being served on pirate websites, despite many companies using ad monitoring vendors.

This raises concerns as to the extent to which gambling operators are inadvertently funding copyright infringing websites (and thereby associating gambling activity with possible criminal activity), and arguably legitimising such sites. It also raises concerns for gambling operators as to the associated reputational, regulatory and (potential) legal risks.