Kinetique trading as Ethica Diamonds and the ASA Ruling

Although this is not the usual tone of our blog articles, we feel it is crucial that we can now be open about the events that led to the ASA Ruling against our company, Kinetique Limited, trading as Ethica Diamonds. The Ruling claims that our advertising was misleading and was published on the 6th October 2021.

We have been trading for over 12 years and we are nothing short of meticulous in the way we run our business. We are a sincere family run company with true authentic values of honesty and integrity which is is reflected in our long standing consistent 5 star feedback through Google and Feefo, both of which are independent review platforms that do not permit editing, deleting or removal of anything negative that people might say about their experience with us.

Our five star ratings and multiple awards for customer service excellence span over 12 years of trading and we currently have over 900 independent reviews.

A personal note from Elaine, founder of Ethica Diamonds

The premise of this complaint was disingenuous and was made by Diotima & Co, an online diamond jewellery alternative company, set up by ex husband of 24 years, and his wife. We have 2 children, Emily 25 years, who is co director of Ethica Diamonds and Thomas 23 years.

I received a solicitors letter specialising in intellectual property claiming that we were misleading the public using the word "diamond" in our marketing and that if we didn't pay a large sum within 30 days, they would make a formal complaint to the ASA. At the same time, Diotima & Co applied to register our trading name - Ethica Diamond as a registered trademark in their name with the UK Intellectual Property Office, without our knowledge.

Despite everything, I am grateful that my business has survived this terrible ordeal, not just because it is what motivates me every day, and has done for over a decade, but also because of our lovely staff who have become like extended family. I will never be able to comprehend that monetary gain and their need to be right was the driving force for them to persist down this legal route which took priority over our children’s emotional well-being.

Thank you for taking the time to read this story.

Elaine Reffell Founder, Ethica Diamonds

THE FILE WAS INITIALLY CLOSED AND THE MATTER WAS DEALT WITH INFORMALLY

The ASA Ruling against our company was a disingenuous attack as part of a motivated strategy from Diotima & Co, set up by Jason Foreman and Avila Ketesvara Reese (now Foreman, but still goes by the name of Avila Reese). Initially, they sent threats to us through their legal counsel that unless we paid them a six figure sum, they would make a formal ASA complaint against us. When we refused to pay, they made the formal complaint to the ASA and applied to register our business name with the UK Intellectual Property Office at the same time, which they used as two blackmail tools. Their application went onto full registration of our house mark, Ethica Diamonds in December 2020.

The ASA complaint case was overseen by Mr Jacob Hatton (who has now left the ASA). Initially, when we were approached we were advised that if we wanted the matter to be dealt with informally, we would need to make a few changes to our advertising. We were compliant and followed the few recommendations provided by the ASA and the matter was informally closed.

A couple of weeks later, Mr Hatton called us and advised that he was “forced to reopen the file because Diotima & Co wouldn’t stop calling the office and complaining”. This was when the case was dealt with formally. The ASA is an organisation that deals with genuine complaints for genuine reasons about advertising standards either from a member of public or another business with the right intention. Every complaint that is received is automatically assumed to be made with the right intention. However, there was ill intention in Diotima & Co’s complaint and even though the ASA knew this was not a genuine complaint, they had to follow their protocol and treat the complaint it as if it were genuine.

MANIPULATION OF REGULATORY SYSTEMS TO EXTORT MONEY

We were forced to go through lengthy proceedings and provide compelling evidence spanning a 2-year period to prove that this registration should be removed from them through formal TM26i invalidation proceedings. In July 2022, we succeeded in this 2-year UKIPO trademark dispute with Diotima & Co, who have now been found guilty of applying for our name in bad faith. It is finally clear that their motivation was to use and manipulate government/regulatory systems (the ASA and UKIPO) as part of their strategy to extort money.

Diotima & Co have now been found guilty of foul-play which is clear in the recent UKIPO ruling, and written as follows by the Hearing Officer:

Para 58 & 59 of the UKIPO Ruling:

"Kinetique needed to satisfy me that there is a prima facie case of bad faith Their evidence clearly satisfies that threshold. Applying for its contested mark does amount to an act of bad faith and It appears that its sole purpose was to cause difficulty to Party B (Ethica Diamonds) and to provide a tool that could be used to extract monies"

In addition to the above, Diotima & Co opposed our own 2 UKIPO applications to secure trade marks of our own name. Their grounds for opposition were that they were misleading and they used continual references in their evidence bundle that pointed the Hearing Officer to the successful ASA ruling against us as a tool to persuade and manipulate his decision and that we should not be granted the registrations despite the fact that they themselves had registered exactly the same mark (which we have now successfully invalidated) under the same class of goods and services. However, the hearing officer did not accept these two oppositions and so they failed.

We have been granted an “off the scale cost award” in our favour because we succeeded on all grounds and Diotima & Co were unsuccessful on everything. The finding by a UK government tribunal that these individuals had previously used the ASA system to attack us has now been found to have, in essence, used the UK trade mark system in bad faith as a means to try and extort money from a growing small business which is very significant.

The UK Government link to the ruling is here:

GOVERNMENT RULING AGAINST DIOTIMA & CO

May we kindly bring to your attention the following paragraphs-

Page 20 para 4 of the UKIPO Ruling:

"The concept of bad faith presupposes the existence of a dishonest state of mind or intention. It relates to a subjective motivation, namely a dishonest intention or other sinister motive"

Although these matters seem to be, on the surface, two separate issues, they both form part of the same strategy and the complaint to the ASA needed to conclude the way it did for Diotima & Co to be able to use this ASA Ruling against us. They tried everything in their power to attempt to manipulate the Hearing Officers decision when he was looking into the evidence for the UKIPO Ruling.

Para 38 of the UKIPO Ruling :

“Party A (Diotima & Co) refers to the Advertising Standards Authority (“ASA”) Ruling again. The Ruling was in respect to promotional text that appeared on Party B’s website and Party A has drawn the following extract from the Ruling to my attention”

“I must keep in mind that I am considering the applied for mark as applied to the goods listed in the application and within the context of the Trade Marks Act 1994. I am not considering a complaint about the alleged misleading nature of Party B’s promotional text on its website. Further, I am no way bound by the findings of the ASA. It ruled that the combination of the term “Ethica Diamond” and “Kind not mined” was “sufficiently ambiguous” that “many consumers” would expect the products being sold to be “natural diamonds. For the purposes of the issue before me, this is the end of the issue. The Registry’s role is limited to assessing whether the mark is deceptive for the goods claimed NOT the goods used. With this in mind, I find that Party B’s marks are not deceptive for the goods listed in its application.”

THE COMPLAINT WAS PRE MEDITATED

1. Kinetique Limited (now trading as Ethica Diamonds) was incorporated in 2010 and then traded as Kinetique Jewellery. This was a new emerging market where disrupters (selling anything other than a natural diamond) were not made very welcome within the traditional diamond sector for quite a number of years to the point where there was a sort of “them and us” undercurrent between natural and lab diamond retailers. Diotima & Co [un]helpfully and [in]conveniently batted from the natural diamond side on this occasion and referenced the NAJ guidelines to convince the ASA that we should not be allowed to use the word diamond for a lab grown diamond or Ethica Diamond as our branded product. As there was little understanding around this emerging market, Diotima & Co knew they had a fighting chance of persuading the ASA that our marketing could be seen as misleading if the file was reopened.

It's important to highlight the hypocrisy of this situation. Diotima & Co was promoting a diamond alternative that they branded as the Eonia Diamond. They also possess trademarks including Altheia Diamond, IQ Diamond, A New Era For Diamonds, all of which were registered to market a diamond alternative. Not forgetting the registration made in bad faith for the Ethica Diamond, which formed the basis of this dispute. Yet they claimed that our use of the word diamond was misleading.

2. The laboratory grown diamond industry is now fast changing and awareness has improved but for many years there was very limited public information available on what a lab diamond was, how they were different, how they were made etc. Diotima & Co knew this and knew that the only guidelines available at the time of their complaint for the ASA to follow for their investigation was provided by the NAJ in 2020. The NAJ are not a legal body but a paid subscription organisation. Their Jewellery Terminology Guidelines focus is more on the lexicon surrounding man made stones than on mined diamonds which leaves a bit of a question mark over whether the NAJ document is appropriately unbiased also considering that the vast majority of NAJ members sell natural diamonds. At the same time, Diotima & Co became paid members of the NAJ (National Association of Jewellers), giving their complaint more credibility. However, as a result of the UKIPO ruling, their membership has now been removed.

3. Regardless, the complaint was made at the very beginning of any guidelines being available at all in the UK. You will find quite a few articles published on Google around the same time Diotima & Co were pushing the ASA to reopen the file. We believe that they knew that there was not enough clarity or proper legal guidance around this fast emerging sector within the diamond industry and knew that if they continued to push, they would get the desired outcome.

Professional Jeweller – Are Advertising Standards Too Strict For Lab Grown Diamonds?  

Professional Jeweller – Diamond Terminology Explained 

GUIDELINES USED AND REFERENCED TO UPHOLD THE COMPLAINT - THE NAJ DOCUMENT

As a side note, the NAJ Diamond Terminology Guidelines definitions state “a diamond is a mineral created by nature, a diamond always means a natural diamond”. However, in the context of the current and ever changing and sophisticated understanding of what constitutes “a diamond”, both within the industry and by the general public, this is an outdated definition.

For an argument to be sound and stand up to the test of reasoning, the premise must be true and the argument has to be valid.

For the NAJ to claim that all diamonds are natural suggesting a laboratory grown diamond is not a diamond, is not a valid argument.

Lab diamonds are man made and not all diamonds are natural because now they can be laboratory grown. Therefore they are a diamond, by definition.

There is a footnote on the NAJ Assured Advice that states “the United States Federal Commission (FTC) has produced its own subtly different guidance on diamond technology, but it is not recognised for diamonds sold inside the UK".

In America, as of July 24th 2018, the definition promulgated in The Diamond Technologies Guidelines (DPA) are no longer applicable. This organisation is the US equivalent as the NAJ in the UK and should be further noted that the FTC regulations carry the force of law whilst the ISO CIBJO Blue Book standards do not (used by the NAJ).

This is the updated FTC definition of diamond: "A diamond is a mineral consisting essentially of pure carbon crystallised in the isometric system".

The FTC justified their change as follows: The final Guides therefore eliminate the word “natural” from the diamond definition. When the Commission first used the definition in 1956, there was only one type of diamond product on the market - natural stones mined from the earth. Since then, technological advances have made it possible to create diamonds in a laboratory. These stones have essentially the same optical, physical and chemical properties as natural diamonds. Thus, they are diamond.

The NAJ state that “a diamond is natural by definition therefore there is no need to use the term natural”.

This is no longer factually correct.

Less than 2 weeks after the UKIPO Ruling and confirmation that we are entitled to an "off the scale" cost award, the Diotima & Co website was taken down, despite it only being up for less than 5 months, in favour of a new website: Avilavara.com together with a completely new limited company which now promotes lab grown diamond jewellery online. People will draw their own inferences from these actions. However, on the surface, it appears to be a tactic to protect themselves from the bad faith ruling and a flitting approach to business.

Apart from changing their website, they also changed the name of their limited company from Diotima & Co to Ethical Luxury Limited trading as Avila Vara only a couple of weeks following the bad faith ruling. Other names they have attempted to use to hide their identity include:

Trugem Limited
Thessalian Ltd
Sotwe - @jaymarcesq
Avila Reese on Linkedin

Further reading:

Rough Diamond – A Clear Cut Case of a Trademark Used in Bad Faith 

Cornwall Live – Vicious Jealous Ex Husband Attempts to Destroy Business

Falmouth Packet – Elaine Reffell Speaks Out Over Case 

Falmouth Packet – Hearing Finds For Elaine Reffell 

Professional Jeweller – Ethica Diamonds ASA Ruling