Wednesday, 1 February 2012

Darren Olivier

Frankies v Woolies update

Just a few hours ago, the ASA made its ruling in the Frankies v Woolies packaging dispute that broke just before Xmas.

Afro-IP follower Tricia Martin drew the report on News24 to Afro Leo's attention which then provoked him to call the ASA who, as usual, were very helpful. Leon Grobler kindly emailed him the decision.

It is important to note that the ASA was only asked to rule on whether the use of the phrase "Goold Old Fashioned" was advertising property and/or imitated by Woolworths and not whether:

• Woolworths copied/exploited the idea to sell soft drinks with “vintage” flavours;

• Woolworths copied the specific flavours sold by the complainant;

• Woolworths copied the complainant’s labels and/or bottle shapes.

In upholding the complaint on "imitation" only (and not ruling on "advertising goodwill exploitation") the ASA ruled that:

"What is clear is that on 15 April 2011, the complainant’s attorneys wrote a letter to the respondent’s supplier indicating that the complainant considers the phrase “Good Old Fashioned Soft Drinks” to be its advertising property. This letter was responded to by the respondent’s attorneys on 12 May 2011. What is important to note from this is that the respondent was aware, at least as early as April/May 2011, that the complainant considered the phrase “Good Old Fashioned Soft Drinks” to be its advertising property. Yet even though its design brief shows that it had a different phrase or phrases in mind for its packaging after this correspondence took place, it ended up using the phrase “Good Old Fashioned” on its packaging. No explanation for this was given.

In light of this, it appears that the only reasonable conclusion to be drawn from the evidence before the Directorate is that the respondent deliberately and intentionally copied the phrase “Good Old Fashioned” from the complainant’s advertising.

Accordingly, the respondent’s use of the phrase “Good Old Fashioned” is an imitation of the complainant’s “Good Old Fashioned Soft Drinks”, and it is therefore in breach of Clause 9 of Section II.

Given the above:

• The packaging in its current format must be withdrawn;
• The process to withdraw the packaging must be actioned with immediate effect on receipt of this ruling;
• The withdrawal of the packaging must be completed within the deadlines stipulated by Clause 15.3 of the Procedural Guide;
• The packaging may not be used again in its current format in future."

Woolworths have 10 days within which to appeal the decision to the Tribunal level.

Darren Olivier

Darren Olivier

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