Thursday, 18 September 2008

Misleading trade marks and the ASA

The South African Advertising Standards Authority recently held that the packaging of a new product in Bayer's Cal-C-Vita range was misleading. The product, Cal-C-Vita Immune Protector, contained various minerals and vitamins, but no calcium. Bayer's argument was that Cal-C-Vita is a registered trade mark and the new product was an extension of the product line, with Cal-C-Vita used as brand name rather than as indication of the product contents. Also, Bayer submitted that the periodic name for calcium is not 'Cal' but 'Ca' and so the reference was not misleading.

The ASA relied on Clause 4.2.1 of section II of the Code of Advertising Practice dealing with misleading claims to find that the product packaging was in fact misleading. All previous Cal-C-Vita products had contained calcium, and the original product was a calcium supplement. It found that all other products on the market containing the the letters 'Cal' did contain calcium and that it appeared to be industry practice to indicate the presence of calcium in a product by using these letters.
It seems unwise of Bayer to use their trade mark so cavalierly - surely this use also makes the trade mark registration vulnerable in terms of s10(12) and 10(13) of the Trade Marks Act?

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