Monday, 22 March 2010

Making Waves

Clause 8 of Section II of the Code of Advertising practice deals with the exploitation of advertising goodwill. It prohibits advertisements which (without permission) take advantage of the goodwill of another party’s advertisement. Consideration is given to, inter alia, the likelihood of confusion, deception and the diminution of goodwill, as well as to whether the advertising concept relied upon is the “signature” of the product or services advertised, is consistently used and prominent in the mind of the consumer. This clause is somewhat in line with the principles of passing off.
Recently, Ocean Basket Holdings (Pty) Ltd lodged a complaint against Jimmy’s Killer Prawns Franchise Group (Pty) Ltd which was using a wave device in its advertising. This use, it submitted, was exploitative of the goodwill of the Complainant’s own wave device, used since 2003.
In response, the Respondent submitted evidence supporting the fact that wave devices are common in the seafood industry, and that they have been for many years prior to 2003. It also provided examples of how the Respondent had, itself, applied its wave device differently in many cases. While it respected the Respondent’s right to the device in its particular colour combination, texture and design, it submitted that its own wave device was sufficiently different to the Respondent’s to avoid confusion in the mind of the consumer.
It appears that the Complainant laid claim to wave devices in general and believed that its use since 2003 created proprietary rights. The ASA Directorate dismissed this argument on the basis that “the use of the device does not create distinctiveness in the device”. It found that a wave device is not unique to or distinctive of the Respondent and dismissed the complaint.
It is important to note that the Directorate did not dismiss the idea that a particular wave device could be distinctive of an advertiser, but rejected this claim on the basis that the complaint was against the mere use of a wave device and not on the similarities between the Complainant’s and the Respondent’s wave devices.

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