South Africa going orange: iBurst again

South Africa going orange: iBurst again

By Darren Olivier   Thursday, June 04, 2009   1 comment:

Why it is that everyone seems to want exclusivity to the colour orange? The latest decision on single colour exclusivity comes from the highly effective Advertising Standards Authority which denied iBurst protection, for the second time.

Sarah-Jane Pluke, a partner at IP specialists Moore Attorneys, successfully argued for Neotel twice now (this is an appeal decision) that iBurst should be denied its request for relief. Her report on BizCommunity can be located here.
"...assuming that advertising goodwill could arise out of the widespread and sustained use of a colour, it would have to be shown by an advertiser that it had exclusively made use of the colour and had through such exclusivity of use, acquired protectable property in such use."

Afro Leo wonders whether there is an irony that iBurst may themselves be accused by Orange Telecom of misappropriating the colour orange under the far-reaching ASA code, which also states, controversially, that: "An advertiser should not copy an existing advertisement, local or international, or any part thereof in a manner that is recognisable or clearly evokes the existing concept and which may result in the likely loss of its potential advertising value. This will apply notwithstanding the fact that there is no likelihood of confusion or deception or that the existing concept has not been generally exposed." For the ECJ ruling on colours (co-incidentally also orange click here)...it seems though, that only a lemon takes on an orange these days.

And...South Africa’s television content industry is gearing up for its protest action against public broadcaster SABC’s financial and management crisis this afternoon in Johannesburg and Cape Town at 12 noon. For details of the protest click here. For the Afro-IP and IP Finance views click here and here.

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Bafana Bafana ASA ruling: update from Roshana

Bafana Bafana ASA ruling: update from Roshana

By Darren Olivier   Wednesday, March 19, 2008   No comments:

Two mobile phone networks slugged it out recently at the Advertising Standards Authority during an appeal to the Sponsorship Dispute Resolution Committee. MTN is the sponsor of an under-16 South African team, while Vodacom sponsors the national team, Bafana Bafana. MTN, when advertising the event it sponsored, captioned the advertisement 'Turning young men into Bafana Bafana'. Vodacom alleged that this contravened various articles of the ASA Code,including the ambush marketing prohibition in article 11.1.1 of Section10 of the Code, which states that no organisation other than the official sponsor may directly or by implication create an impression that its communications relate to a specific event or create an impression that they are the official sponsor of such an event. The ASA Directorate, while accepting that Bafana Bafana is the general term used when referring to the men's soccer team, held that the use of these words was not strictly necessary in the advertisement, and could imply a connection between the team and MTN. for this reason, it ordered that the advertisement be withdrawn. On appeal, the Committee ruled that Vodacom did not have exclusive rights to the name Bafana Bafana, as the name is in general usage and can be used by competitors provided they do not contravene the sponsorship code. MTN did not breach the ambush marketing provisions of the code (quoted above) as it referred to its own sponsorship in the advertisement and did not imply a link to the respondent's sponsorship.

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No Hummers here

No Hummers here

By roshana   Thursday, February 28, 2008   No comments:

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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