Thursday, 28 February 2008

No Hummers here

The South African Advertising Standards Authority recently upheld a complaint by General Motors against the Professional Provident Society, and insurer, who referred to their HUMMER trade mark. The advert stated "...don't listen to this ad if you're not a graduate professional. At PPS you won't win a Hummer, there's no free gym contract ...".

The ASA relied on clause 8 of section II of the Advertising Code, which provides:

8. Exploitation of advertising goodwill
8.1 Advertisements may not take advantage of the advertising goodwill relating to the trade name or symbol of the product or service of another, or advertising goodwill relating to another party's advertising campaign or advertising property, unless the prior written permission of the proprietor of the advertising goodwill has been obtained. Such permission shall not be considered to be a waiver of the provisions of other clauses of the Code.
8.2 Parodies, the intention of which is primarily to amuse and which are not likely to affect adversely the advertising goodwill of another advertiser to a material extent, will not be regarded as falling within the prohibition of paragraph 8.1 above. In considering matters raised under this clause consideration will be given to, inter alia, the likelihood of confusion, deception and the diminution of advertising goodwill.

This is much more stringent interpretation than that of the South African Supreme Court of Appeal in the recent BMW v Verimark decision, available here: In this decision, the court held that the BMW trade mark was not infringed by using a BMW vehicle in an advertisement for car polish.

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